Evidence

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USCIS Policy Manual › Volume 1 - General Policies and Procedures › Part E - Adjudications › USCIS Policy Manual, Vol. 1, Pt. E, Ch. 6

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Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request. [1] The purpose of gathering evidence is to determine some fact or matter at issue. When adjudicating a benefit request under the preponderance of the evidence standard, the officer examines each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is “more likely than not” or “probably” true. [2]

The administrative record created by an officer is often crucial in later proceedings relating to the same requestor, such as appeals, rescission proceedings, removal proceedings, applications for relief and protection from removal, other benefit requests, and investigations of fraud. Additionally, under the Jencks Act, [3] anyone who provides a statement at an administrative proceeding, such as an immigration interview, is a potential government witness whose statement the government may be required to produce. Therefore, officers and other USCIS staff must retain and enter into the administrative record the following:

- Written and signed affidavits, such as sworn statements;

- Recordings and transcripts of interviews;

- Original interview notes;

- Original notes made during site visits and surveillance operations; and

- Original drafts of reports concerning interviews or surveillance operations if they are the first written record of the interview or surveillance.

the administrative record the following:

- Written and signed affidavits, such as sworn statements;

- Recordings and transcripts of interviews;

- Original interview notes;

- Original notes made during site visits and surveillance operations; and

- Original drafts of reports concerning interviews or surveillance operations if they are the first written record of the interview or surveillance.

A requestor must establish eligibility for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication. If the evidence the requestor provides meets their burden of proof to establish eligibility, [4] USCIS approves the benefit request. If the law requires an exercise of discretion, USCIS can approve the request only if the requestor merits a favorable exercise of discretion and otherwise establishes eligibility. [5] If the evidence is not sufficient to establish eligibility, USCIS may request evidence or proceed directly to denial, as appropriate.

Unless otherwise specified by regulations [6] or USCIS policy on a particular benefit request, USCIS follows the following guidance regarding evidence, including initial evidence, additional evidence, primary evidence, secondary evidence, and affidavits. [7]

A. Initial and Additional Evidence

1. Initial Evidence

Initial evidence is a threshold requirement to establish a basis for filing in accordance with statutes, regulations, and USCIS form instructions, as applicable. [8] Initial evidence must generally be in the form of primary evidence, if available. [9]

Typically, statutes provide broad eligibility standards, whereas regulations provide more specific requirements and generally describe the documentary requirements necessary to establish that the benefit requestor meets the statutory eligibility requirements. The USCIS form instructions clarify specific required evidence that must accompany the request. [10]

of primary evidence, if available. [9]

Benefit requestors must properly complete and file each benefit request with all initial evidence required by the applicable regulations and other USCIS instructions, including form instructions. [11] Benefit requestors must establish that they are eligible for the benefit request at the time they file the benefit request and must continue to be eligible through adjudication of the benefit request. [12]

If all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its discretion may either deny the benefit request for lack of initial evidence or for ineligibility, or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS. [13]

2. Additional Evidence

Where the benefit requestor has submitted the required initial evidence, but USCIS finds that it does not fully establish eligibility for the benefit requested, raises underlying questions regarding eligibility, or fails to establish that the requestor warrants a favorable exercise of discretion (if applicable), USCIS may request additional evidence [14] be submitted within a specified period of time as determined by USCIS or notify the benefit requestor of its intent to deny the benefit request and the basis for the proposed denial, and require that the requestor submit a response within a specified period of time as determined by USCIS. [15]

r warrants a favorable exercise of discretion (if applicable), USCIS may request additional evidence [14] be submitted within a specified period of time as determined by USCIS or notify the benefit requestor of its intent to deny the benefit request and the basis for the proposed denial, and require that the requestor submit a response within a specified period of time as determined by USCIS. [15]

For example, a petitioner who files a Petition for Alien Relative ( Form I-130 ) on behalf of his or her mother must submit a copy of a birth certificate listing the petitioner’s name and his or her mother’s name as initial evidence, among other evidence. [16] If, for example, a petitioner submits a birth certificate that indicates that the mother’s name was amended 45 years after the petitioner’s birth and just 2 months before the petitioner filed the petition, the birth certificate may meet the initial evidence requirement but it would fail to meet the burden of proof because the birth certificate raises fundamental questions about the circumstances surrounding the amendment of the record and why the birth certificate incorrectly identified the petitioner’s mother for 45 years. In this case, USCIS explains to the petitioner concerns with the amended birth certificate and provides the petitioner with an opportunity to submit additional evidence in response to a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), or at an interview.

B. Primary Evidence, Secondary Evidence, and Affidavits

DHS regulations and other USCIS instructions, including form instructions, describe what evidence must be submitted with a benefit request. Unless otherwise specified by regulations relating to a specific benefit, this policy governs on primary evidence, secondary evidence, and affidavits. [17]

of Intent to Deny (NOID), or at an interview.

B. Primary Evidence, Secondary Evidence, and Affidavits

In general, evidence must be in the form of primary evidence, if available. If primary evidence does not exist or cannot be obtained, benefit requestors must demonstrate this fact and submit secondary evidence. [18] If secondary evidence also does not exist or cannot be obtained, benefit requestors must demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, [19] as described below.

Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence. [20]

1. Primary Evidence

When USCIS has determined that a certain type of evidence, on its own, is sufficiently credible and probative to prove a specific fact, it designates that evidence as “primary evidence.” [21] The characteristics that make a type of evidence “primary evidence” may depend on the nature and context of the fact in question, but generally, USCIS designates evidence as primary evidence if it derives directly from an authoritative source. That is, primary evidence is generally issued by a competent authority or entity with the recognized legal right and jurisdiction to produce the evidence and affirms direct knowledge regarding the information contained in the evidence produced.

ture and context of the fact in question, but generally, USCIS designates evidence as primary evidence if it derives directly from an authoritative source. That is, primary evidence is generally issued by a competent authority or entity with the recognized legal right and jurisdiction to produce the evidence and affirms direct knowledge regarding the information contained in the evidence produced.

For example, a court-issued divorce decree is primary evidence of a divorce. In this example, the court is the authoritative source (that is, the court granted the divorce), because it is the competent authority with the jurisdiction to produce that decree and also directly oversaw the proceeding in which the document was produced.

Primary Evidence Generally Required

USCIS generally [22] requires primary evidence where such evidence is available according to the U.S. Department of State (DOS). [23] If the requestor cannot obtain such primary evidence, the requestor must demonstrate that the required primary evidence does not exist or cannot be obtained and provide secondary evidence. [24]

Primary Evidence that is Generally Available but is Unreliable

Officers may also encounter cases where primary evidence is generally available, but DOS reports that such documents are unreliable. [25] Civil records may be considered unreliable or require additional scrutiny for various reasons, including inaccurate recording, date of issuance, inconsistent standards for issuance, or widespread fraud. [26]

vidence that is Generally Available but is Unreliable

If foreign documents submitted as primary evidence are unreliable according to DOS or based on other information, USCIS may request secondary evidence [27] in support of the benefit request. In cases where the secondary evidence is insufficient, or where interview criteria indicate, USCIS may either refer the benefit requestor for an in-person interview or issue an RFE or a NOID when the record does not establish eligibility. Whether evidence establishes the eligibility requirements is evaluated by the totality and quality of the evidence presented.

Late-issued or late-registered evidence may also be unreliable, and therefore may be assigned less probative value than evidence issued at the time of the event. Government-issued documents with a delayed registration date may lack an adequate verification process. The Board of Immigration Appeals has reasoned that birth certificates with delayed registration dates are less reliable because "the opportunity for fraud is much greater with a delayed birth certificate.” [28]

e may be assigned less probative value than evidence issued at the time of the event. Government-issued documents with a delayed registration date may lack an adequate verification process. The Board of Immigration Appeals has reasoned that birth certificates with delayed registration dates are less reliable because "the opportunity for fraud is much greater with a delayed birth certificate.” [28]

For example, while a birth certificate issued by a competent authority is primary evidence, a late-registered birth certificate may be afforded less evidentiary weight since it is not a contemporaneous record of a birth but rather is a record reflecting that a birth occurred at sometime in the past. [29] When a petitioner seeking to prove a familial relationship submits a birth certificate that was not registered contemporaneously with the birth, an officer must consider the birth certificate, as well as all the other evidence of record and the circumstances of the case, to determine whether the petitioner has submitted sufficiently reliable evidence to demonstrate the claimed relationship by a preponderance of the evidence. [30]

Demonstrating Primary Evidence is Not Available or Cannot be Obtained

If primary evidence required to establish eligibility for a benefit request does not exist, the benefit requestor must submit an original written statement on government letterhead establishing this from the relevant government or other authority. [31] The statement must indicate the reason the record does not exist and indicate whether similar records for the time and place are available. [32]

Certification from an appropriate foreign government that a document does not exist is not required where DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage indicates this type of document generally does not exist. [33]

r authority. [31] The statement must indicate the reason the record does not exist and indicate whether similar records for the time and place are available. [32]

Officers might encounter situations in which primary evidence is available according to DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage, but the requestor asserts it does not exist or cannot be obtained. [34] This generally gives rise to a presumption of ineligibility, which is the requestor’s burden to overcome. [35] A requestor’s assertion, without more, is not sufficient to demonstrate that primary evidence does not exist.

A benefit requestor who has not been able to obtain required primary documentation or a statement of non-existence from the relevant foreign authority may submit evidence that repeated good faith attempts were made to obtain the required document or statement. However, where USCIS finds that such documents or statements are generally available, USCIS may require that the applicant or petitioner submit the required document or statement. [36]

2. Secondary Evidence

In most cases, secondary evidence is evidence that does not derive from a primary, authoritative source but tends to circumstantially corroborate a claim through an inference. In general, USCIS considers secondary evidence to be inferior to primary evidence and, consequently, attributes less probative value to secondary evidence.

mit the required document or statement. [36]

2. Secondary Evidence

For example, records maintained by religious or faith-based organizations showing that a person was divorced at a certain time are secondary evidence of the divorce. [37] In this example, the secondary evidence is not issued by the authoritative source (that is, the court granted the divorce, not the church), because the court is the competent authority with the legal right and jurisdiction to produce evidence for the event in question.

Likewise, a government-issued birth certificate is an example of primary evidence of the birth of a child, whereas a baptismal certificate is an example of secondary evidence of the birth of a child. [38]

Unless otherwise specified by regulation, USCIS only accepts secondary evidence when primary evidence does not exist or cannot be obtained. [39] Secondary evidence is less reliable and, consequently, is attributed less probative value than primary evidence. [40]

In the absence of primary evidence as required by regulation, [41] the requestor must:

- Demonstrate that the required document does not exist or cannot be obtained by providing an original written statement on government letterhead from the appropriate issuing authority attesting to the fact that no primary record exists and the reason the record does not exist; [42] and

- Submit secondary evidence that overcomes the unavailability of the primary evidence. [43]

However, if the DOS reciprocity webpage shows that a record is generally not available in a particular country, USCIS may accept secondary evidence without requiring the written statement from the issuing authority. [44]

Optional Submission of DNA Testing

nd the reason the record does not exist; [42] and

- Submit secondary evidence that overcomes the unavailability of the primary evidence. [43]

Optional Submission of DNA Testing

Certain immigration benefits require the benefit requestor to provide evidence of a qualifying claimed genetic relationship through the submission of primary evidence. [45] In general, a timely registered birth certificate issued by a civil authority is considered primary evidence of a genetic relationship. In circumstances where a required birth certificate does not exist or cannot be obtained, or when the birth certificate is not sufficiently reliable or is insufficient to meet the burden of proof, the benefit requestor must submit secondary or additional evidence to demonstrate the claimed genetic relationship.

Pursuant to its regulatory authority, USCIS may require Blood Group Antigen or Human Leukocyte Antigen (HLA) tests to prove parentage when other forms of evidence are deemed insufficient to demonstrate a claimed genetic relationship. [46] However, those tests are no longer widely available and are not as probative or reliable as a Deoxyribonucleic Acid (DNA) test. [47] As evidence of a claimed genetic relationship, USCIS may suggest but not require the submission of DNA test results. [48]

While USCIS does not have statutory or regulatory authority to require the submission of DNA test results, USCIS offers benefit requestors the option to pursue DNA testing when available evidence is insufficient to demonstrate the claimed genetic relationship.

(DNA) test. [47] As evidence of a claimed genetic relationship, USCIS may suggest but not require the submission of DNA test results. [48]

Officers may suggest DNA testing at any time during adjudication of the underlying benefit request. However, officers should not suggest DNA testing as an additional means to verify the existence of a claimed genetic relationship in cases where the evidence submitted already meets the burden of proof to demonstrate eligibility for the benefit sought. The suggestion to pursue DNA testing should be limited to cases where required primary evidence is unavailable or when required primary evidence is otherwise unreliable and other evidence provided by the benefit requestor is insufficient to meet the burden of proof.

In cases where a birth certificate does not exist or cannot be obtained, or when the birth certificate is not sufficiently reliable or insufficient to meet the burden of proof, USCIS issues an RFE or otherwise requests secondary or additional evidence of the claimed genetic relationship. When requesting secondary or additional evidence, officers must also notify the benefit requestor of the option to submit DNA testing results, which allows the benefit requestor to provide all evidence at once and reduces the need to issue an additional RFE or other request.

For certain form types where primary evidence of a qualifying genetic relationship is not required, USCIS will still suggest benefit requestors submit DNA testing results when the provided evidence in the record or credible testimony does not establish the claimed genetic relationship by a preponderance of the evidence and the officer determines a request for additional evidence is necessary. [49]

If the benefit requestor fails or refuses to submit DNA testing results, as a matter of policy, and to avoid unnecessary delays in adjudication, USCIS will not send another RFE or other request for the sole purpose of suggesting DNA. Rather, officers will evaluate the response to the RFE or other request, if one was provided, and adjudicate accordingly based on the record.

Although USCIS cannot require DNA test results to verify the existence of the claimed genetic relationship, officers will suggest that the benefit requestor voluntarily submit DNA test results in cases where reliable primary evidence is not available and the officer determines additional evidence is necessary. DNA collection is voluntary and a benefit requestor’s decision not to include DNA evidence in a response to an RFE or other request should not be the sole basis for a NOID or denial for failure to meet the required burden of proof. [50] Generally, the required standard of proof is preponderance of the evidence. Therefore, denial is proper if the qualifying genetic relationship is not established by a preponderance of evidence.

3. Affidavits

USCIS considers an affidavit to be a voluntary statement or declaration sworn to or affirmed by a declarant with personal knowledge of the events being attested to. [51] Affidavits are generally considered tertiary evidence. Absent specific regulatory provisions stating otherwise, affidavits may be accepted as evidence only when neither primary nor secondary evidence exists, or when such evidence cannot be obtained. [52]

avit to be a voluntary statement or declaration sworn to or affirmed by a declarant with personal knowledge of the events being attested to. [51] Affidavits are generally considered tertiary evidence. Absent specific regulatory provisions stating otherwise, affidavits may be accepted as evidence only when neither primary nor secondary evidence exists, or when such evidence cannot be obtained. [52]

Where evidence is available or contradicts the benefit requestor’s assertions, “simply going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof.” [53]

In the absence of primary and secondary evidence as required by a specific regulation, [54] the requestor must:

- Demonstrate that the required document does not exist or cannot be obtained by providing an original written statement on government letterhead from the relevant government or other authority attesting to the fact that the primary record does not exist and the reason the record does not exist;

- Demonstrate the unavailability of any secondary evidence; and

- Submit two or more affidavits by persons who are not parties to the benefit request and who have direct personal knowledge of the event and circumstances. [55]

Affidavits should generally contain the following:

- The nature of the affiant's relationship, if any, to the parties;

- The basis of the affiant's knowledge; and

- A statement of the facts the affiant knows regarding the matter, rather than mere conclusory statements. [56]

ns who are not parties to the benefit request and who have direct personal knowledge of the event and circumstances. [55]

Affidavits should generally contain the following:

- The nature of the affiant's relationship, if any, to the parties;

- The basis of the affiant's knowledge; and

- A statement of the facts the affiant knows regarding the matter, rather than mere conclusory statements. [56]

Affidavits will be evaluated for credibility and weight and those that do not contain the above information may not be afforded significant probative value or evidentiary weight (such as whether the affidavit is sufficiently detailed, internally consistent, plausible, and explains how the affiant acquired knowledge of the facts set forth). [57] Little weight may be afforded to an affidavit if the affiant lacks direct knowledge of the events and circumstances described in the affidavit. [58] Officers should confirm that affidavits contain all the elements necessary to substantiate the facts. Officers should analyze the affidavits carefully and compare them with all available information to determine if inconsistencies exist.

In determining the weight to assign a piece of documentary evidence, USCIS considers a document’s credibility, reliability, and authenticity. Assessing a document’s credibility is a separate consideration from whether the evidence is primary or secondary and is imperative in the adjudication process to ensure that USCIS gives appropriate weight to evidence that carries a reasonable expectation of accuracy in terms of the information it contains.

The circumstances surrounding the creation of records, such as evidence that a document was created immediately at the time of the event it claims to record, and whether its creation was as part of the regular conduct of business, may affect the weight given to the document. All furnished evidence should be scrutinized for consistency with claims made in the benefit request and information contained in DHS records.

C. Copies vs. Originals

of records, such as evidence that a document was created immediately at the time of the event it claims to record, and whether its creation was as part of the regular conduct of business, may affect the weight given to the document. All furnished evidence should be scrutinized for consistency with claims made in the benefit request and information contained in DHS records.

C. Copies vs. Originals

Benefit requestors must submit original or photocopied documents in accordance with the specific form instructions. [59] In some instances, regulations or form instructions may specify that original documents are required. Additionally, USCIS may, at any time, request the original document for review. [60] For example, if evidence of a divorce decree is required and a submitted photocopy appears altered or is illegible, the officer requests the original divorce decree.

1. When Originals Are Required and Photocopies Permitted

When a requestor files a paper form [61] with USCIS, original documents may be required. Examples of supporting documents that requestors must generally present in the original are:

- Medical examinations;

- Affidavits; and

- Labor certifications.

Unless otherwise required, the requestor may submit a legible photocopy of any other supporting document at the time of filing. [62]

2. Requesting Original Documents

USCIS may, at any time, request submission of an original document for review. The request sets a deadline for submission of the original document.

If a requestor does not submit the requested original of the document by the deadline, USCIS may deny the benefit request as abandoned, based on the record, or both. [63]

3. Returning Original Documents

Upon completion of the adjudication, USCIS returns original documents if the submission was in response to a USCIS request. Although USCIS does not automatically return originals that it did not request, offices are encouraged to voluntarily return submitted original documents. [64] All retained originals become part of the record.

sed on the record, or both. [63]

3. Returning Original Documents

To request return of originals that were not returned during the adjudication process, the requestor may submit a Request for the Return of Original Documents ( Form G-884 ).

D. Types of Evidence

Strict rules of evidence used in judicial proceedings do not apply in administrative proceedings, including benefits requests before USCIS. Usually, requestors may submit any oral or documentary evidence for USCIS’ consideration when determining eligibility for the benefit sought.

Because the strict rules of evidence do not apply in administrative proceedings, officers may consider a wide range of oral or documentary evidence.

1. Documentary Evidence

Documentary evidence includes all types of documents, records, and writings and is subject to the same considerations regarding competency and credibility as is testimonial evidence discussed below. Documentary evidence may be divided into two categories: public documents and private documents.

Public Documents

Public documents are the official records of legislative, judicial, and administrative bodies. A requestor may submit public documents as evidence to demonstrate eligibility for the benefit sought. For example, a government-issued birth certificate is a public document.

Sometimes the keeper of a record issues an “extract” version of a document. Such official extracts are acceptable if they contain all the information necessary to make a decision on a case. Only extracts prepared by an authorized official (the “keeper of record”) are acceptable.

Private Documents

ity for the benefit sought. For example, a government-issued birth certificate is a public document.

Private Documents

Private documents include all documents other than the official records of legislative, judicial, or administrative bodies of government. Requestors often submit private documents as supporting evidence for benefit requests. Private documents can include, but are not limited to, business or tax records, bank statements, affidavits, education credentials, or photographs.

2. Testimonial Evidence

Officers frequently take testimony to determine eligibility for immigration benefits. [65] USCIS may require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request, or any group or class of such persons submitting requests, to appear for an interview and provide testimony. [66] However, an officer should only take testimony from a person who is mentally competent at the time set to testify. An officer should not attempt to take testimony from any person who might lack the mental capacity, such as:

- A person who has been found mentally incompetent by an appropriate authority;

- A person who is under the influence of drugs or alcohol; or

- A person the officer suspects is mentally incompetent. In those cases, the officer must clearly document their reason(s) for reaching that conclusion.

In any situation where the witness’ competency is in doubt, officers should supplement the record with the testimony of another witness, with other evidence relating to the same matter, or reschedule the interview, per local procedures.

ohol; or

- A person the officer suspects is mentally incompetent. In those cases, the officer must clearly document their reason(s) for reaching that conclusion.

When interviewing minors, officers consider the child’s age and stage of language development when eliciting testimony. Such interviews may warrant special considerations, including determining whether a trusted adult may be present.

Credibility of Testimony

Discrepancies in statements may discredit the witness. [67] However, officers should consider that even a truthful witness, in speaking of past events, might not repeatedly reproduce the facts in their entirety without small changes in insignificant detail.

Witnesses who have signed statements might later indicate that they wish to retract the statement, or they might give contrary testimony when later called upon to testify. USCIS may not prevent such witnesses from retracting or changing prior statements. However, contradictory statements may adversely impact the credibility of the witness. [68] In addition, the original and retracted statement must remain in the official record to compare statements.

Witnesses may also claim that testimony was made under duress. However, a generalized claim of duress by itself, without additional evidence, is insufficient to undermine or discredit detailed admissions or confessions of fraud. [69] This is especially true where the statement in which the coercion allegation is made does not specifically deny or explain away the initial facts admitted.

atements.

If an officer determines that the testimony of a witness is not credible, the written decision or interview notes or both must indicate this conclusion. However, it generally is not enough to simply say that the witness is not credible. Instead, the officer’s decision gives the specific reason(s) for the conclusion and refers to evidence in the record that supports the conclusion.

Privileged Testimony

Officers may occasionally encounter the issue of privilege. A testimonial privilege allows the person who invokes it to bar testimony that would violate the privilege. Examples include the privilege against self-incrimination and spousal privileges.

Each privilege differs slightly in how it applies, such as whose testimony may be barred and who may invoke the privilege. The scope of the material covered by the privilege also differs. [70]

Sworn Statements

An officer may also take a sworn statement. A sworn statement is a written declaration given under an oath (or affirmation). It must be witnessed and signed and contain an accurate record of the questions asked and answers received. The sworn statement becomes part of the permanent, official record and may be used in a subsequent proceeding or prosecution. The determination of benefit eligibility may depend on the evidence in the sworn statement and the interview record it creates may be particularly important in complex cases, such as those involving national security or fraud concerns.

questions asked and answers received. The sworn statement becomes part of the permanent, official record and may be used in a subsequent proceeding or prosecution. The determination of benefit eligibility may depend on the evidence in the sworn statement and the interview record it creates may be particularly important in complex cases, such as those involving national security or fraud concerns.

An officer taking a sworn statement must focus on gathering all necessary information to make a decision. The officer must structure the statement in a manner that is logical, using a clear progression of facts and questions. Officers explore each relevant fact uncovered in a statement by further questioning to the extent necessary before changing topics.

In particular, sworn statements should not consist of conclusory statements. They should include sufficient factual detail to make it possible for USCIS to make a reasonable decision about the weight of the statement, and for a benefit requestor to have a reasonable chance at rebuttal.

When a sworn statement is taken and the affiant signs it, the affiant (the person making the statement) or authorized representative may request a copy of the statement. Upon request, USCIS provides a copy of the signed sworn statement to an affiant, without fee, at the conclusion of the interview where the statement was taken. [71]

3. Expert and Opinion Evidence

On occasion, officers may require evidence from an expert to assist in completing an adjudication. For example, in cases involving handwritten, counterfeit, or altered documents, U.S. Immigration and Customs Enforcement (ICE)’s Homeland Security Investigations Forensic Laboratory qualified personnel may serve as experts. [72] A requestor may also submit evidence from a non-DHS expert.

on Evidence

An expert is permitted to give an opinion on a particular set of facts or circumstances involving scientific, technical, or other specialized knowledge. Knowledge, skill, experience, training, or education must qualify the expert. Officers may reject or afford lesser evidentiary weight to expert opinions that conflict with the evidence of record or are questionable. [73]

E. Translations

1. Document Translations

Any document containing a foreign language submitted in support of a benefit request must be accompanied by a full English language translation. [74] The translator must certify that the translation is complete and accurate, and that the translator is competent to translate from the foreign language into English. [75] A summary of a document prepared by a translator is unacceptable.

2. Document Translators

If an officer takes a written statement in a foreign language and a translator translates it into English, it may be necessary to produce the translator at a subsequent interview or hearing. When there is evidence that a written statement might not be accurately translated, the translator may be called upon to testify not only as to knowledge of the English and the foreign language, but also to confirm the accuracy of the translation. [76]

F. Requests for Evidence and Notices of Intent to Deny

The burden of proof to establish eligibility for an immigration benefit falls solely on the benefit requestor. [77] If a benefit requestor fails to meet their burden, USCIS denies the benefit request.

ed upon to testify not only as to knowledge of the English and the foreign language, but also to confirm the accuracy of the translation. [76]

F. Requests for Evidence and Notices of Intent to Deny

Depending on the facts of a particular adjudication, USCIS may issue an RFE or NOID to a benefit requestor who has failed to meet their burden of proof. However, with limited exceptions, [78] the issuance of an RFE or NOID is not required by regulation and USCIS has discretion to deny the request without first issuing an RFE or a NOID when the case does not establish eligibility. [79] For example, if all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request for lack of initial evidence or failure to establish eligibility. [80]

An officer should issue an RFE or NOID when the facts and the law warrant; an officer should not avoid issuing an RFE or NOID when one is needed. However, an officer does not issue an RFE or NOID if the officer determines the evidence already submitted establishes eligibility or ineligibility for the request.

If the officer determines a benefit request does not have any legal basis for approval, the officer should issue a denial without prior issuance of an RFE or a NOID. [81] This includes any filing in which the benefit requestor has no legal basis for the benefit sought or submits a request for an inactive or terminated program. For example, a family-based petition filed for a family member based on a relationship category not provided by statute (such as a grandparent filing a petition for a grandchild) should be denied for no legal basis, without first issuing an RFE or NOID.

1. Evaluating Evidence and Eligibility

stor has no legal basis for the benefit sought or submits a request for an inactive or terminated program. For example, a family-based petition filed for a family member based on a relationship category not provided by statute (such as a grandparent filing a petition for a grandchild) should be denied for no legal basis, without first issuing an RFE or NOID.

1. Evaluating Evidence and Eligibility

Unless otherwise specified, officers generally follow these principles in each case:

- Understand the specific elements required to demonstrate eligibility for the benefit request. [82]

- Understand the standard of proof that applies to the benefit request. In most instances, the benefit requestor must establish eligibility under the preponderance of the evidence standard. Under that standard, the benefit requestor must prove it is more likely than not that the requestor meets each of the required elements. [83]

- Review all the evidence to determine if each of the essential elements has been satisfied by the applicable standard of proof.

"Doubt cast on any aspect of the evidence as submitted may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the benefit request. It is incumbent upon the benefit requestor to resolve any inconsistencies in the record by independent objective evidence. Attempts to explain or reconcile the conflicting accounts, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice." [84]

If the officer determines that the benefit requestor is eligible for the benefit requested (all the essential elements have been satisfied by the applicable standard of proof, including but not limited to, when applicable, that a favorable exercise of discretion is warranted), the officer approves the benefit request without issuance of an RFE or NOID. [85]

in fact, lies, will not suffice." [84]

If the benefit requestor has not established eligibility under the applicable standard of proof, the officer either denies the request because he or she failed to meet his or her burden of proof, or issues an RFE or NOID. [86]

2. Considerations Before Issuing Requests for Evidence or Notices of Intent to Deny

Before issuing an RFE or NOID, the officer may:

- Perform additional research;

- If not already required for the benefit type, interview the benefit requestor or other witnesses; or

- Initiate an investigation.

Each option requires varying degrees of resources. Therefore, officers should carefully evaluate each option when deciding next steps.

Performing Additional Research

Although the burden of proof to establish eligibility for an immigration benefit is on the benefit requestor, [87] an officer may assess, before issuing an RFE or a NOID, whether the information or evidence needed is available in USCIS records or systems. Officers have the discretion [88] to validate assertions or corroborate evidence and information by reviewing USCIS (or other governmental) files, systems, and databases, or by obtaining publicly available information that is readily accessible. [89]

For example, an officer may, in the exercise of discretion, verify information relating to a petitioner’s corporate structure by consulting available websites or corroborate evidence relating to a person’s history of nonimmigrant stays in the United States by searching a U.S. government database.

3. Requests for Evidence

y obtaining publicly available information that is readily accessible. [89]

3. Requests for Evidence

The purpose of an RFE is to obtain necessary evidence or elicit further information that clarifies whether the requestor has met the burden of proof to demonstrate eligibility for the benefit sought. [90] The burden of proof is on the benefit requestor to establish eligibility, and USCIS issues RFEs in its discretion if warranted by the facts of a specific adjudication.

If all required initial evidence is not submitted with the benefit request, or the evidence submitted is insufficient to demonstrate eligibility, USCIS may deny the benefit request without issuing an RFE or NOID.

An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication. [91]

Content of RFEs

RFEs:

- Identify the eligibility requirement(s) that has not been established and why the evidence submitted is insufficient;

- Identify any missing or deficient evidence specifically required by the applicable statute, regulation, or form instruction;

- Specify whether the requested evidence is initial evidence or additional evidence;

- Provide examples of other evidence that may be submitted to establish eligibility; and

- Request that evidence.

s not been established and why the evidence submitted is insufficient;

- Identify any missing or deficient evidence specifically required by the applicable statute, regulation, or form instruction;

- Specify whether the requested evidence is initial evidence or additional evidence;

- Provide examples of other evidence that may be submitted to establish eligibility; and

- Request that evidence.

Officers should request evidence that is within the scope of the adjudication and otherwise relevant to an identified deficiency. RFEs are not issued to “cure” an eligibility deficiency, as requestors must establish eligibility for the requested benefit at the time of filing the benefit request; USCIS denies a request where evidence submitted in response to an RFE does not establish filing eligibility at the time the benefit request was filed. [92]

An officer may request evidence that bears on a USCIS discretionary determination even if not required for threshold eligibility. For example, if a discretionary benefit request does not have statutory or regulatory eligibility criteria tied to criminal history, the officer can still issue an RFE for police documents or judgment or conviction documents because any such derogatory information, if it exists, would be relevant to the exercise of USCIS’ discretion. [93]

The RFE asks for all the evidence the officer anticipates needing to determine eligibility and clearly states the deadline for response.

Avoiding Multiple RFEs

In certain instances, the evidence provided in response to an RFE may raise eligibility questions that the officer did not identify during initial case review or open new lines of inquiry. In such a case, the officer issues a follow-up RFE or NOID. However, where possible, officers should include in a single RFE all the evidence they anticipate needing to adjudicate the request. The officer’s careful consideration of all the apparent deficiencies in the evidence may minimize the need for multiple RFEs.

Timeframe for Response

during initial case review or open new lines of inquiry. In such a case, the officer issues a follow-up RFE or NOID. However, where possible, officers should include in a single RFE all the evidence they anticipate needing to adjudicate the request. The officer’s careful consideration of all the apparent deficiencies in the evidence may minimize the need for multiple RFEs.

Timeframe for Response

The maximum response time for an RFE is 12 weeks (84 days); regulations prohibit officers from granting additional time to respond to an RFE. [94] When setting the response time for an RFE, officers have the discretion to determine a response time that is reflective of the evidence being requested and the efficient operation of the immigration system as long it does not exceed the maximum response time of 12 weeks.

The RFE must clearly state the deadline by which the requested initial or additional evidence must be submitted to USCIS.

Regulations govern the effect of service, which may be in person, by mail, or electronically. [95] When USCIS serves an RFE in person, the service of the RFE is complete the same day. When USCIS serves an RFE electronically to the benefit requestor’s online account, the service of the RFE is complete upon the benefit requestor on the day that USCIS uploads the RFE. When USCIS serves an RFE by mail, the service of the RFE is complete upon the benefit requestor on the day that USCIS mails the RFE. [96] When USCIS serves an RFE by mail, 3 days are added to the prescribed period. [97] This provides a maximum of 87 days after USCIS mailed the RFE, for USCIS to receive a timely RFE response.

omplete upon the benefit requestor on the day that USCIS uploads the RFE. When USCIS serves an RFE by mail, the service of the RFE is complete upon the benefit requestor on the day that USCIS mails the RFE. [96] When USCIS serves an RFE by mail, 3 days are added to the prescribed period. [97] This provides a maximum of 87 days after USCIS mailed the RFE, for USCIS to receive a timely RFE response.

Further, USCIS applies the regulatory definition of day [98] when reviewing a mailed RFE response for timeliness. Where USCIS receives the response on a Monday or on the next business day after a federal holiday, USCIS considers the response to be timely if the RFE deadline fell on the preceding Saturday, Sunday, or federal holiday. As such, when the last day of the response period falls on a Saturday, Sunday, or federal holiday, the RFE response period is extended until the end of the next day that is not a Saturday, Sunday, or federal holiday.

USCIS considers a response to an RFE that is submitted through the USCIS online system to be received on the date it is electronically submitted through the individual’s (or attorney or representative’s) online account, regardless of whether the day is on a weekend or federal holiday.

Maximum Timeframes

In compliance with the regulations, the guidelines in the table below provide maximum timeframes for benefit requestors to respond to RFEs. [99] These maximum timeframes do not apply to circumstances in which a fixed maximum response time is specified by regulation. [100]

4. Notices of Intent to Deny

Circumstances Under Which NOIDs are Required [104]

USCIS must issue a NOID before denying any immigration benefit requests submitted on the following forms:

- Application for Determination of Suitability to Adopt a Child from a Convention Country ( Form I-800A ) based on a mandatory denial ground; [105]

- Petition to Classify Convention Adoptee as an Immediate Relative ( Form I-800 ) based on a mandatory denial ground; [106] or

e Required [104]

USCIS must issue a NOID before denying any immigration benefit requests submitted on the following forms:

- Application for Determination of Suitability to Adopt a Child from a Convention Country ( Form I-800A ) based on a mandatory denial ground; [105]

- Petition to Classify Convention Adoptee as an Immediate Relative ( Form I-800 ) based on a mandatory denial ground; [106] or

- Application to Register Permanent Residence or Adjust Status ( Form I-485 ) filed by a physician because the physician failed to comply with the conditions attached to his or her national interest waiver. [107]

Additional Circumstances Under Which USCIS May Issue NOIDs

While not required in other situations, a NOID also provides a benefit requestor with adequate notice and sufficient opportunity to respond to an intended denial because of a determination of ineligibility. [108]

It is not appropriate to issue a NOID if required initial evidence is not submitted with the benefit request. In such a circumstance, USCIS in its discretion may deny the benefit request for lack of initial evidence, or may choose to issue an RFE. However, officers may issue NOIDs in other circumstances, including where the benefit requestor meets the eligibility requirements for the requested benefit or action but has not established that he or she warrants a favorable exercise of discretion (where there is also a discretionary component to the adjudication). [109]

Content of NOIDs

NOIDs:

- Identify the reasons for the intended denial, including the eligibility requirement(s) that has not been established, and why the evidence submitted is insufficient;

- Explain the nature of the adverse information, if any, in sufficient detail;

- Identify any missing evidence specifically required by the applicable statute, regulation, or form instructions;

- Identify examples of other evidence that may be submitted to establish eligibility or overcome deficiencies; and

- Request that evidence.

n established, and why the evidence submitted is insufficient;

- Explain the nature of the adverse information, if any, in sufficient detail;

- Identify any missing evidence specifically required by the applicable statute, regulation, or form instructions;

- Identify examples of other evidence that may be submitted to establish eligibility or overcome deficiencies; and

- Request that evidence.

The NOID also instructs the benefit requestor that a failure to respond may result in a denial and must clearly state the deadline for response. [110]

Timeframe for Response

The NOID must clearly state the deadline by which the response must be submitted to USCIS. The maximum response time for a NOID is 30 days. [111]

Regulations govern the effect of service, which may be in person, by mail, or electronically. [112] When USCIS serves a NOID in person, the service of the NOID is complete upon the benefit requestor on the same day. When USCIS serves a NOID electronically to the benefit requestor’s online account, the service of the NOID is complete upon the benefit requestor on the day that USCIS uploads the NOID.

When USCIS serves a NOID by mail, the service of the NOID is complete upon the benefit requestor on the day that USCIS mails the NOID. [113] When USCIS serves a NOID by mail, 3 days shall be added to the period prescribed in the NOID. If the response time is 30 days, this provides a maximum of 33 days after USCIS mailed the NOID for USCIS to receive a timely NOID response. [114]

uploads the NOID.

Further, USCIS applies the regulatory definition of day [115] when reviewing a mailed NOID response for timeliness. Where USCIS receives the response on a Monday or on the next business day after a federal holiday, USCIS considers the response to be timely if the NOID deadline fell on the preceding Saturday, Sunday, or federal holiday. As such, when the last day of the response period falls on a Saturday, Sunday, or federal holiday, the NOID response period is extended until the end of the next day that is not a Saturday, Sunday, or federal holiday.

USCIS considers a response to a NOID that is submitted through the USCIS online system to be received on the date it is electronically submitted through the individual’s (or attorney or representative’s) online account, regardless of whether the day is a weekend or federal holiday.

Standard Timeframes

In compliance with the regulations, the guidelines in the table below provide standard timeframes for benefit requestors to respond to NOIDs. [116]

5. Responses to Requests for Evidence and Notices of Intent to Deny

Within the timeframe specified, benefit requestors may respond to an RFE or NOID in one of three ways:

- Submit a complete response containing all requested information;

- Submit a partial response, which is considered a request for a decision on the record; or

- Withdraw the application or petition. [118]

ond to NOIDs. [116]

5. Responses to Requests for Evidence and Notices of Intent to Deny

Within the timeframe specified, benefit requestors may respond to an RFE or NOID in one of three ways:

- Submit a complete response containing all requested information;

- Submit a partial response, which is considered a request for a decision on the record; or

- Withdraw the application or petition. [118]

When the benefit requestor submits a partial responses to an RFE or NOID, the officer will make a decision on the record. [119] If the requestor does not respond to an RFE or NOID within the requested timeframe, the benefit request may be summarily denied as abandoned, denied based on the record, or denied for both reasons. [120]

Requested Materials Must Be Submitted Together

Submission of only some of the requested evidence will be considered a request for a decision on the record. [121] Whether in response to an RFE or a NOID, benefit requestors must submit all requested materials together at one time, along with the original RFE or NOID. USCIS treats any partial submission in response to an RFE or NOID as a request for a final decision on the record. [122] USCIS does not wait for a second response or issue a second RFE or NOID simply because a response from the benefit requestor is a partial response.

Insufficient Response or Failure to Respond to an RFE or NOID

Failure to submit all requested evidence which precludes a material line of inquiry is grounds for denying the request. [123] If a benefit requestor does not respond to an RFE or NOID by the required date, [124] USCIS does one of the following:

- Denies the benefit request as abandoned; [125]

- Denies the benefit request based on the record; or

- Denies the benefit request for both reasons. [126]

G. Derogatory Information Unknown to the Benefit Requestor

erial line of inquiry is grounds for denying the request. [123] If a benefit requestor does not respond to an RFE or NOID by the required date, [124] USCIS does one of the following:

- Denies the benefit request as abandoned; [125]

- Denies the benefit request based on the record; or

- Denies the benefit request for both reasons. [126]

G. Derogatory Information Unknown to the Benefit Requestor

Derogatory information is information that is relevant to the adjudication and adverse to the benefit requestor’s ability to demonstrate eligibility or warrant a favorable exercise of discretion for the benefit sought. [127]

If USCIS intends to deny a benefit request based on derogatory information of which the requestor is unaware, [128] USCIS must first give the requestor sufficient notice of and an opportunity to rebut the derogatory information and to present evidence in support of the benefit request. [129] The use of certain information, including classified information, is subject to specific requirements and policies.

Officers intending to utilize classified derogatory information, or derogatory information that otherwise require specific procedures by regulation or policy, must comply with these requirements as directed in this Policy Manual section. Additionally, USCIS generally does not disclose information that may be limited by procedural agreements or contracts.

USCIS encounters a wide array of adverse information through a variety of sources.

USCIS must also follow applicable laws and policies pertaining to privacy, confidentiality, and sharing personally identifiable information with third parties. [130]

1. Documents and Information That USCIS Cannot Disclose

Certain documentation is privileged, sensitive, or otherwise protected by statute or regulation and cannot be disclosed, even if such adverse information would otherwise be relied upon in an adverse decision.

Information that USCIS generally cannot disclose includes:

- Information that is classified under Executive Order 13526; [131]

130]

1. Documents and Information That USCIS Cannot Disclose

Information that USCIS generally cannot disclose includes:

- Information that is classified under Executive Order 13526; [131]

- Information owned by another agency for which use or sharing authority has not been provided;

- Information related to an alien who is protected by 8 U.S.C. 1367 [132] unless it can be sufficiently anonymized to protect the confidentiality of the protected individual or an exception applies; [133] and

- Information related to certain applications for asylum status, extended to refugees as a matter of policy, and withholding of removal under INA 241(b)(3) . [134]

Classified Information

USCIS cannot provide the benefit requestor any information contained in the record or outside the record that is classified [135] as requiring protection from unauthorized disclosure in the interest of national security, unless the classifying authority has agreed in writing to such disclosure or the information has been declassified. [136] This information cannot be provided in any form, including summarized in a detailed description or verbally during an interview.

Other Agency Records

USCIS generally does not disclose records owned by another agency [137] unless USCIS is authorized to use or share such information. [138] However, USCIS may disclose the information in a detailed description if the benefit requestor or alien beneficiary provided that information to the U.S. Government agency (USGA) himself or herself or if permission is granted by the USGA owner and subject to the terms and conditions of applicable data sharing agreements, such as the agreement between USCIS and the U.S. Department of State (DOS) on disclosure authorization requirements. [139]

n a detailed description if the benefit requestor or alien beneficiary provided that information to the U.S. Government agency (USGA) himself or herself or if permission is granted by the USGA owner and subject to the terms and conditions of applicable data sharing agreements, such as the agreement between USCIS and the U.S. Department of State (DOS) on disclosure authorization requirements. [139]

USCIS officers are responsible for following information security controls, as established by DHS policies and federal laws, that protect federal operations and assets when sharing or using information across agencies. [140] Other agency information includes records from DOS and other agencies outside of USCIS or DHS.

If other agency records yield information upon which USCIS intends to make an adverse decision and that information was provided by the benefit requestor or alien beneficiary, is clearly attributable to the benefit requestor or alien beneficiary, is not based exclusively on the other agency’s records and is otherwise disclosable, or the benefit requestor is already aware of the information, USCIS may confront the benefit requestor with it in an interview or disclose the information in a NOID, whichever applies.

2. Derogatory Information Containing Details That May or May Not Be Disclosed

Derogatory information may be found in any evidence, document, or statement relevant to the benefit request. The sections below discuss different types of information an officer may encounter that may include derogatory information for potential use in an adverse decision, and which parts of such derogatory information may or may not be disclosed.

Private Information

May or May Not Be Disclosed

Private Information

Derogatory information is sometimes found in documents or statements that contain information that may cause harm or embarrassment to an individual or that may be protected by privacy laws. [141] USCIS may generally disclose this type of information but may be restricted from providing certain details, such as personally identifiable information (PII) and sensitive personally identifiable information (SPII). In some cases, certain information may be disclosed if permission is obtained from the individual about whom the information pertains.

Information Designated as Law Enforcement Sensitive (LES) or Sensitive But Unclassified (SBU), including For Official Use Only (FOUO)

Information that is owned by USCIS and designated as LES, SBU, or FOUO may sometimes contain derogatory information that USCIS intends to rely on in an adverse determination. USCIS generally does not disclose information that is labeled as LES, SBU, or FOUO without following specific protocols, which may include obtaining permission from the individuals involved in the investigation, redesignating the relevant information by the appropriate designation authorities, withholding sensitive details that could reveal investigative methods or sensitive information or sources (including government names in investigative reports), or following Freedom of Information Act procedures. [142]

Information Related to an Ongoing or Past Investigation

ndividuals involved in the investigation, redesignating the relevant information by the appropriate designation authorities, withholding sensitive details that could reveal investigative methods or sensitive information or sources (including government names in investigative reports), or following Freedom of Information Act procedures. [142]

Information Related to an Ongoing or Past Investigation

Derogatory information is sometimes found in records that pertain to an investigation including information that could jeopardize investigative sources or methods, or ongoing criminal, civil, or administrative investigations.

Certain derogatory information that is part of a past investigation may generally be disclosed in a detailed description. If unclear whether the investigation is closed, officers should contact the lead investigator to confirm the status of the investigation. Officers may be required to obtain permission from the investigating source or from a third party involved in the past investigation to disclose certain details. However, USCIS must follow applicable laws, rules and data sharing agreements and officers are expected to interpret information from various sources and know what information must be disclosed or confronted with the benefit requestor and what details are necessary to provide a legally sufficient decision, including whether details require permission from another agency.

Officers must omit any non-disclosable information from the detailed description (NOID) or verbally during an interview. For example, USCIS may disclose the derogatory information in a detailed description without providing the name of the person who provided the information if the source has not given USCIS permission to reveal his or her identity. For example, USCIS does not need to provide the names or identities of neighbors that provided adverse information to USCIS during a site visit so long as USCIS provides sufficient detail of derogatory information unknown to the benefit requestor. [143]

without providing the name of the person who provided the information if the source has not given USCIS permission to reveal his or her identity. For example, USCIS does not need to provide the names or identities of neighbors that provided adverse information to USCIS during a site visit so long as USCIS provides sufficient detail of derogatory information unknown to the benefit requestor. [143]

Officers should discuss an ongoing investigation with the investigator before disclosing parts of the investigation or derogatory information as premature disclosures could impact the investigation. Generally, investigative reports specify the origin of derogatory information and special limitations on disclosure. However, in the absence of such designations, officers are expected to utilize all resources available to them and apply the information they have obtained from both investigations and government resources to adjudicate a benefit request appropriately. Each USCIS employee is responsible for safeguarding sensitive information.

Third-Party Information

Certain records containing derogatory information may include PII or SPII relating to a person or entity other than the benefit requestor or alien beneficiary. This third-party information includes, but is not limited to:

- Financial information; [144]

- Patient or health records;

- Consumer reporting agency reports;

- Trade secrets;

- Student education records from an educational institution;

- Cable subscriber records;

- Tax return information;

- Utility company correspondence (such as gas or internet bills); or

- Electronic communication records from a communication service provider or remote computing service.

cial information; [144]

- Patient or health records;

- Consumer reporting agency reports;

- Trade secrets;

- Student education records from an educational institution;

- Cable subscriber records;

- Tax return information;

- Utility company correspondence (such as gas or internet bills); or

- Electronic communication records from a communication service provider or remote computing service.

USCIS generally may disclose third-party information that was provided to or obtained by USCIS, which is sometimes mixed with the benefit requestor’s or alien beneficiary’s information; however, certain details or information that are protected by specific privacy or confidentiality laws may not be disclosed without permission from the individual to whom the information pertains. [145]

3. How USCIS Discloses Derogatory Information

If USCIS has the authority and permission to disclose the information, officers provide notice of derogatory information with a detailed description [146] in the form of a Request for Evidence (RFE), Notice of Intent to Deny (NOID), or in certain cases, a Notice of Intent to Revoke (NOIR), Notice of Intent to Rescind (NOIR), or a Notice of Intent to Terminate (NOIT). [147] Officers may also provide derogatory information or a detailed description during an interview, if permissible. [148]

Generally, when disclosing derogatory information through a detailed description, USCIS must describe the derogatory information in sufficient detail to give the benefit requestor a meaningful opportunity to rebut the adverse information used in arriving at the decision. [149] USCIS does not need to inform the benefit requestor of every detail in the record. Rather, USCIS only informs the benefit requestor in “sufficient detail” so the benefit requestor is provided an opportunity to resolve any inconsistencies in the record by objective evidence. [150]

the benefit requestor a meaningful opportunity to rebut the adverse information used in arriving at the decision. [149] USCIS does not need to inform the benefit requestor of every detail in the record. Rather, USCIS only informs the benefit requestor in “sufficient detail” so the benefit requestor is provided an opportunity to resolve any inconsistencies in the record by objective evidence. [150]

When a benefit requestor is aware of the information that USCIS may use to make an adverse determination because the benefit requestor provided the information [151] or the information was provided in support of another benefit request filed by the same requestor [152] USCIS may, but is not required to, [153] disclose information in a detailed description before issuing a final decision.

When USCIS intends to deny the benefit request based on derogatory information of which the benefit requestor is unaware and the information is not prohibited from being disclosed as described above, USCIS may, in some discretionary instances, [154] provide a legible copy of the primary source document containing the derogatory information to the benefit requestor. USCIS may attach the primary source document to a NOID, RFE, NOIR, or NOIT, with necessary redactions. [155]

Before providing source copies of any derogatory information, USCIS, in consultation with other agencies as appropriate, redacts the primary source document as required by the Privacy Act and other confidentiality laws or policies. If the relevant derogatory information appears in a section of a larger document that makes releasing the entire document unfeasible or burdensome, USCIS releases only that section as necessary to adequately advise the benefit requestor of the derogatory information and give them a meaningful opportunity to rebut or explain it.

equired by the Privacy Act and other confidentiality laws or policies. If the relevant derogatory information appears in a section of a larger document that makes releasing the entire document unfeasible or burdensome, USCIS releases only that section as necessary to adequately advise the benefit requestor of the derogatory information and give them a meaningful opportunity to rebut or explain it.

There may be instances where a primary source document must be redacted to the point that it no longer contains sufficient information to provide the benefit requestor a meaningful opportunity to rebut the information on which USCIS will base an adverse decision. In such cases, USCIS may instead provide a detailed description of the relevant derogatory information.

Footnotes

[1] See 8 CFR 103.2(b) .

[2] See Matter of Chawathe (PDF) , 25 I&N Dec. 369, 376 (AAO 2010). Certain documentation requirements do not apply to asylees adjusting status. See INA 212(a)(7)(A ).

[3] See 18 U.S.C. 3500 . The Jencks Act requires that a statement that was made by a government witness be produced after the government witness has testified upon demand by the defense. Failure by the government to produce the statement requires the suppression of the testimony of that witness.

[4] See INA 291 .

[5] See Chapter 8, Discretionary Analysis [ 1 USCIS-PM E.8 ].

[6] See 8 CFR 103.2(b)(2)(i) . Unless otherwise specified, the generally applicable rule is that the non-existence or other unavailability of required evidence creates a presumption of ineligibility.

[7] See 8 CFR 103.2 regarding the submission and adjudication of benefit requests.

of the testimony of that witness.

[4] See INA 291 .

[5] See Chapter 8, Discretionary Analysis [ 1 USCIS-PM E.8 ].

[6] See 8 CFR 103.2(b)(2)(i) . Unless otherwise specified, the generally applicable rule is that the non-existence or other unavailability of required evidence creates a presumption of ineligibility.

[7] See 8 CFR 103.2 regarding the submission and adjudication of benefit requests.

[8] See 8 CFR 103.2(b)(1) , providing that the requestor must establish that he or she is “eligible for the requested benefit at the time of filing the request” and that “[e]ach benefit request must be properly completed and filed with initial evidence required by applicable regulations and other USCIS instructions.” See also 8 CFR 103.2(b)(8)(ii) (addressing procedures related to a requestor’s failure to submit all required initial evidence). Therefore, in general, initial evidence is evidence required by regulations and by form instructions for a particular benefit.

[9] See Section B, Primary Evidence, Secondary Evidence, and Affidavits [ 1 USCIS-PM E.6(B) ].

[10] See 8 CFR 1.2 . See Changes in Processing Procedures for Certain Applications and Petitions for Immigration Benefits, 59 FR 1455 (Jan. 11, 1994).

[11] See 8 CFR 103.2(b)(1) . In addition to providing a list of required initial evidence in the form instructions, USCIS also provides an optional checklist of required initial evidence for many benefit requests on the relevant form’s webpages.

[12] See 8 CFR 103.2(b)(1) .

[13] See 8 CFR 103.2(b)(8)(ii) . For more information, see Section F, Requests for Evidence and Notices of Intent to Deny [ 1 USCIS-PM E.6(F) ].

[14] See 8 CFR 103.2(b)(8)(iii) . If all required initial evidence has been submitted but it does not establish eligibility, USCIS may request additional information or evidence from the applicant or petitioner in order to determine eligibility for the benefit sought.

[15] See 8 CFR 103.2(b)(8)(iii) .

[16] See 8 CFR 204.2(f)(2) .

for Evidence and Notices of Intent to Deny [ 1 USCIS-PM E.6(F) ].

[15] See 8 CFR 103.2(b)(8)(iii) .

[16] See 8 CFR 204.2(f)(2) .

[17] See 8 CFR 103.2 on the submission and adjudication of benefit requests. See also 8 CFR 103.2(b)(2)(i) . Unless otherwise specified, the generally applicable rule is that the non-existence or other unavailability of required evidence creates a presumption of ineligibility.

[18] See 8 CFR 103.2(b)(2)(i) .

[19] See 8 CFR 103.2(b)(2)(i) .

[20] See 8 CFR 103.2(b)(2)(i) .

[21] For instance, see 8 CFR 204.1(f) , 8 CFR 204.1(g)(1) , 8 CFR 204.2(b)(2) , and 8 CFR 204.2(d)(2)(i) -( iv ).

[22] However, for some applications and petitions, such as asylum applications and applications for classification as a refugee, testimony alone may meet the evidentiary requirements. See INA 208(b)(1)(B)(ii) .

[23] See 8 CFR 103.2(b)(2)(i)-(ii) . Officers reference DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage for country-specific document standards.

[24] See 8 CFR 103.2(b)(2)(i) .

[25] See 8 CFR 204.1(f)(1) . See DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage provides country-specific information on the availability and reliability of various foreign documents. If DOS shows that a record is generally not reliable in a particular country, USCIS requests secondary evidence.

webpage for country-specific document standards.

[24] See 8 CFR 103.2(b)(2)(i) .

[26] Note: As of September 30, 2010, all birth certificates that were issued in Puerto Rico before July 1, 2010, are invalid. For any benefit request received after September 30, 2010, officers should verify that the Puerto Rico birth certificate was issued by the General Vital Statistics Office of Puerto Rico (Puerto Rico Department of Health) on or after July 1, 2010. For more information, see S.B. 1653, Law No. 68 of 2009.

[27] In certain cases where primary and secondary evidence are not sufficient to demonstrate the existence of a claimed genetic relationship, USCIS will send the requestor a Request for Evidence (RFE) suggesting DNA testing to support that a claim of a genetic relationship exists, in situations where the officer is requesting additional evidence.

[28] See Matter of Serna , 16 I&N Dec. 643, 645 (BIA 1978).

[29] See Matter of Serna , 16 I&N Dec. 643 (BIA 1978) (“there can be little dispute that the opportunity for fraud is much greater with a delayed birth certificate” in the establishment of U.S. citizenship through the presentation of a delayed U.S. birth certificate); Matter of Ma , 20 I&N Dec. 394 (BIA 1991) (a delayed birth certificate does not necessarily offer conclusive evidence of paternity even if it is unrebutted by contradictory evidence; the delayed birth certificate must be evaluated in light of the other evidence of record and the circumstances of the case); Matter of Bueno , 21 I&N Dec. 1029, 1033 (BIA 1997) affirming the decision in the Matter of Ma

ter of Ma , 20 I&N Dec. 394 (BIA 1991) (a delayed birth certificate does not necessarily offer conclusive evidence of paternity even if it is unrebutted by contradictory evidence; the delayed birth certificate must be evaluated in light of the other evidence of record and the circumstances of the case); Matter of Bueno , 21 I&N Dec. 1029, 1033 (BIA 1997) affirming the decision in the Matter of Ma . For purposes of considering birth certificates that were not issued at or near the time of birth, the officer should consider "the record as a whole to determine whether there is sufficient evidence of the relationship.” See Matter of Rehman , 27 I&N Dec. 124, 126 (BIA 2017).

[30] See Matter of Rehman , 27 I&N Dec. 124, 126 (BIA 2017).

[31] See 8 CFR 103.2(b)(2)(i) . The generally applicable rule is that the non-existence or other unavailability of required evidence creates a presumption of ineligibility. Where the presumption of ineligibility applies, secondary evidence and affidavits are generally admissible only if the benefit obtains a statement of non-existence of the primary documentation from the relevant authority. However, for specific benefit requests where a regulatory exception to the general presumption of ineligibility applies, secondary evidence and affidavits may be considered without obtaining a letter of non-existence from the relevant government or other authority.

[32] See 8 CFR 103.2(b)(2)(ii) .

[33] See 8 CFR 103.2(b)(2)(ii) .

[34] The DOS’s website provides country-specific information on the availability of various foreign documents.

[35] See 8 CFR 103.2(b)(2)(i) .

[36] See 8 CFR 103.2(b)(2)(ii) .

[37] For example, see 8 CFR 204.2(b)(2) (religious documents are secondary evidence of the termination of prior marriages for a widow(er) petition).

[38] For example, see 8 CFR 204.1(g)(2) (a baptismal certificate with the seal of the church, showing the date and place of birth in the United States, and the date of baptism is secondary evidence of a petitioner’s U.S. citizenship).

.2(b)(2)(ii) .

[37] For example, see 8 CFR 204.2(b)(2) (religious documents are secondary evidence of the termination of prior marriages for a widow(er) petition).

[39] See 8 CFR 103.2(b)(2)(i) . See Subsection 1, Primary Evidence [ 1 USCIS-PM E.6(B)(1) ]. Unless a contradictory regulation applies, the generally applicable rule is that the non-existence or other unavailability of required evidence creates a presumption of ineligibility.

[40] For instance, see 8 CFR 204.1(g)(2) .

[41] See 8 CFR 103.2(b) .

[42] See 8 CFR 103.2(b)(2)(ii) .

[43] See 8 CFR 103.2(b)(2)(i) .

[44] See 8 CFR 103.2(b)(2)(ii) . See DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage.

[45] See 8 CFR 103.2(b)(2)(i) . Unless otherwise specified, the generally applicable rule is that the non-existence or other unavailability of required primary evidence creates a presumption of ineligibility.

[46] See 8 CFR 204.2(d)(2)(vi) .

[47] According to the Association for the Advancement of Blood & Biotherapies (AABB), DNA testing is the most reliable scientific test available to confirm a biological relationship and replaces older serological testing such as blood typing and serological HLA typing. It is USCIS practice to suggest DNA testing due to its advantages over blood testing. See AABB's Standards for Relationship Testing Laboratories , Appendix 9, Immigration Testing (16th ed. 2024).

[48] The decision to pursue DNA testing is voluntary and the benefit requestor is responsible for all associated expenses. When suggesting DNA testing, USCIS also notifies the benefit requestor of where to find a list of AABB accredited laboratories.

to its advantages over blood testing. See AABB's Standards for Relationship Testing Laboratories , Appendix 9, Immigration Testing (16th ed. 2024).

[49] See 8 CFR 207.7(e) and 8 CFR 208.21(f) . For example, Form I-730 petitioners are not required to submit primary evidence because 8 CFR 207.7(e) and 8 CFR 208.21(f) supersede the general presumption of ineligibility at 8 CFR 103.2(b)(2)(i).

[50] See 8 CFR 103.2(b)(11) .

[51] See Black's Law Dictionary (12th ed. 2024). See 8 CFR 103.2(b)(2)(i) .

[52] See 8 CFR 103.2(b)(2)(i) . Unless otherwise specified by regulation, the generally applicable rule is that the non-existence or other unavailability of required evidence creates a presumption of ineligibility.

[53] See Matter of Soffici (PDF) , 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California , 14 I&N Dec. 190 (Reg. Comm. 1972)).

[54] See 8 CFR 103.2(b) .

[55] Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence. See 8 CFR 103.2(b)(2) .

[56] See Matter of Chin , 14 I&N Dec. 150, 152 (BIA 1972); Matter of Kwan , 14 I&N Dec. 175, 176-77 (BIA 1972); Iyamba v. INS , 244 F.3d 606, 608 (8th Cir. 2001); and Dabaase v. INS , 627 F.2d 117, 119 (8th Cir. 1980).

[57] See Matter of Patel , 19 I&N Dec. 774 (BIA 1988).

[58] See Matter of Kwan , 14 I&N Dec. 175 (BIA 1972) (“Information in an affidavit should not be disregarded simply because it appears to be hearsay; in administrative proceedings, that fact merely affects the weight to be afforded it.”).

[59] See 8 CFR 103.2(b)(4) .

[60] See 8 CFR 103.2(b)(5) .

v. INS , 627 F.2d 117, 119 (8th Cir. 1980).

[57] See Matter of Patel , 19 I&N Dec. 774 (BIA 1988).

[59] See 8 CFR 103.2(b)(4) .

[60] See 8 CFR 103.2(b)(5) .

[61] For benefit requests filed electronically as permitted by form instructions, requestors must follow the instructions provided to properly submit all required evidence. For additional information relating to electronic filings, see Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests [ 1 USCIS-PM B.6 ].

[62] For additional information on when USCIS requires original documents, see form-specific filing instructions.

[63] See 8 CFR 103.2(b)(4)-(5) . See 8 CFR 103.2(b)(13) .

[64] See 8 CFR 103.2(b)(5) .

[65] For example, an officer reviews all relevant records and considers the applicant’s testimony to determine whether a naturalization applicant has met the required period of continuous residence.

[66] See 8 CFR 103.2(b)(9) .

[67] Witnesses may include, but are not limited to, applicants, petitioners, and other benefit requestors.

[68] Retraction of prior statements made under oath may, under certain conditions, render the witnesses liable for perjury.

[69] See Matter of Isber , 20 I&N Dec. 676, 679 (BIA 1993) (explaining that “general claim of duress is insufficient to retract her detailed admissions as to the fraudulent nature of her marriage”). See Sehgal v. Lynch , 813 F.3d 1025, 1030-31 (7th Cir. 2016) (finding that allegations of coercion, including being threatened “with all kinds of things” and being forced to sign a statement without first reading it, were too vague to undermine a prior confession that the marriage had been fraudulent).

s insufficient to retract her detailed admissions as to the fraudulent nature of her marriage”). See Sehgal v. Lynch , 813 F.3d 1025, 1030-31 (7th Cir. 2016) (finding that allegations of coercion, including being threatened “with all kinds of things” and being forced to sign a statement without first reading it, were too vague to undermine a prior confession that the marriage had been fraudulent).

[70] Officers should not confuse privileged testimony with confidentiality provisions. For more information on confidentiality, see Part A, Public Services, Chapter 7, Privacy and Confidentiality [ 1 USCIS-PM A.7 ].

[71] See 8 CFR 103.2(b)(7) .

[72] If an officer intends to issue an adverse decision based on derogatory information of which the benefit requestor is unaware, the officer must disclose the information and provide the benefit requestor the opportunity to rebut the information and present information in the requestor’s own behalf. See 8 CFR 103.2(b)(16)(i) .

[73] See Matter of Caron Int'l, Inc . (PDF) , 19 I&N Dec. 791, 795 (Comm. 1988).

[74] See 8 CFR 103.2(b)(3) . “A full translation is necessary for [USCIS] to fully analyze documents submitted.” See Changes in Processing Procedures for Certain Applications and Petitions for Immigration Benefits, 59 FR 1455 (Jan. 11, 1994) (rejecting public comments requesting extracts or partial translations instead of full translations). See Matter of Nevarez , 15 I&N Dec. 550 (BIA 1976) (noting that requestors are required by regulation to provide certified English translations of any foreign language documents they submit).

[75] See 8 CFR 103.2(b)(3) .

[76] See 8 CFR 103.2(b)(3) .

[77] See INA 291 . For more information on burden and standards of proof, see Chapter 4, Burden and Standards of Proof. [ 1 USCIS-PM E.4 ].

tions). See Matter of Nevarez , 15 I&N Dec. 550 (BIA 1976) (noting that requestors are required by regulation to provide certified English translations of any foreign language documents they submit).

[75] See 8 CFR 103.2(b)(3) .

[76] See 8 CFR 103.2(b)(3) .

[77] See INA 291 . For more information on burden and standards of proof, see Chapter 4, Burden and Standards of Proof. [ 1 USCIS-PM E.4 ].

[78] See, for example, 8 CFR 103.2(b)(16)(i) . However, this regulation does not require the issuance of a NOID provided USCIS advises the benefit requestor of the derogatory information and offers an opportunity to rebut that information before a decision is rendered. While the issuance of a NOID is one potential way to satisfy the regulation, depending on the case-specific circumstances an interview may be more efficient.

[79] See 8 CFR 103.2(b)(8) . However, certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failure to appear; therefore, the guidance in this chapter does not apply to these immigration benefits governed by different regulations. The terms “benefit request” and “immigration benefit request,” as used in this Policy Manual part, include, but are not limited to, all requests funded by the Immigration Examinations Fee Account (IEFA). These terms may also refer to forms or requests not directly resulting in an immigration benefit.

[80] See 8 CFR 103.2(b)(8)(ii) .

[81] For more information, see Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [ 1 USCIS-PM E.9(B)(1) ].

[82] See the program-specific part of the Policy Manual for more information on eligibility requirements that apply to a particular benefit request.

[83] For more information, see Chapter 4, Burden and Standards of Proof [ 1 USCIS-PM E.4 ].

] For more information, see Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [ 1 USCIS-PM E.9(B)(1) ].

[82] See the program-specific part of the Policy Manual for more information on eligibility requirements that apply to a particular benefit request.

[83] For more information, see Chapter 4, Burden and Standards of Proof [ 1 USCIS-PM E.4 ].

[84] See Matter of Ho (PDF) , 19 I&N Dec. 582, 591-2 (BIA 1988). Furthermore, if USCIS fails to believe a fact stated in the petition is true or accurate, USCIS may reject that fact. See INA 204(b) . See Anetekhai v. I.N.S. , 876 F.2d 1218, 1220 (5th Cir. 1989).

[85] See 8 CFR 103.2(b)(8)(i) .

[86] See Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [ 1 USCIS-PM E.9(B)(1) ].

[87] See INA 291 . See Matter of Arthur (PDF) , 16 I&N Dec. 558 (BIA 1978).

[88] However, under 8 CFR 103.2(b)(17) , officers must verify the status of an applicant or petitioner who claims that he or she is a lawful permanent resident by reviewing USCIS records.

[89] See INA 287(b) . See 8 CFR 103.2(b)(16)(i) .

[90] See 8 CFR 103.2(b)(8) .

[91] See 8 CFR 103.2(b)(1) .

[92] See 8 CFR 103.2(b)(12) .

[93] See 8 CFR 103.2(b)(8)(iii) . An RFE on this basis is for additional evidence, rather than initial evidence.

[94] See 8 CFR 103.2(b)(8)(iv) .

[95] See 8 CFR 103.8(b) (“Whenever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”). See 8 CFR 103.8(a) (describing routine service by ordinary mail or electronic mail (electronically) and personal service, performed by a government employee).

rson has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”). See 8 CFR 103.8(a) (describing routine service by ordinary mail or electronic mail (electronically) and personal service, performed by a government employee).

[96] See 8 CFR 103.8(b) (“Whenever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”).

[97] See 8 CFR 103.8(b) .

[98] See 8 CFR 1.2 .

[99] See 8 CFR 103.2(b)(8)(iv) .

[100] For example, USCIS generally provides an applicant for naturalization 30 days (33 if mailed) to respond to an RFE. See 8 CFR 335.7 . See Volume 12, Citizenship and Naturalization, Part B, Naturalization Examination, Chapter 4, Results of the Naturalization Examination, Section B, Continuation of Examination, Subsection 1, Continuation to Request Evidence [ 12 USCIS-PM B.4(B)(1) ].

[101] Due to the relatively short processing times required by the Form I-539, a maximum response time of only 30 days applies to RFEs for Form I-539 filings.

[102] Due to the streamlined nature of the provisional unlawful presence waiver process and to avoid long delays in immigrant visa processing, a maximum response time of 30 days applies to RFEs for the Form I-601A.

[103] Certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear. Therefore, the guidance in this table does not apply to these immigration benefits governed by different regulations.

igrant visa processing, a maximum response time of 30 days applies to RFEs for the Form I-601A.

[104] Certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear. Therefore, the guidance in this section does not apply to these immigration benefits governed by different regulations.

[105] See 8 CFR 204.309(a) . See 8 CFR 204.309(c) .

[106] See 8 CFR 204.309(a) . See 8 CFR 204.309(c) .

[107] See 8 CFR 245.18(i) .

[108] However, if the officer determines that there is no legal basis for the benefit request, the officer generally denies the request. See Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [ 1 USCIS-PM E.9(B)(1) ].

[109] For more information, see Chapter 8, Discretionary Analysis [ 1 USCIS-PM E.8 ].

[110] See 8 CFR 103.2(b)(13) .

[111] See 8 CFR 103.2(b)(8)(iv) . Officers adjudicating a benefit request may exercise their discretion to consider late responses to NOIDs to have been submitted timely if in their view circumstances warrant it.

[112] See 8 CFR 103.8(b) (“Whenever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”). See 8 CFR 103.8(a) (describing routine service by ordinary or electronic mail and personal service, performed by a government employee).

3.8(b) (“Whenever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”). See 8 CFR 103.8(a) (describing routine service by ordinary or electronic mail and personal service, performed by a government employee).

[113] See 8 CFR 103.8(b) (“Whenever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”).

[114] See 8 CFR 103.8(b) .

[115] See 8 CFR 1.2 .

[116] See 8 CFR 103.2(b)(8)(iv) .

[117] Certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear. Therefore, the guidance in this table does not apply to these immigration benefits governed by different regulations.

[118] See 8 CFR 103.2(b)(11) and 8 CFR 103.2(b)(6) . USCIS’ acknowledgement of a withdrawal may not be appealed. See 8 CFR 103.2(b)(15) .

[119] See 8 CFR 103.2(b)(14) .

[120] See 8 CFR 103.2(b)(13) .

[121] See 8 CFR 103.2(b)(11) .

[122] See 8 CFR 103.2(b)(11) .

[123] See 8 CFR 103.2(b)(14) .

[124] Applications for asylum are not subject to denial under 8 CFR 103.2(b) , like other benefit requests, generally. See 8 CFR 208.14(d) .

[125] The benefit requestor may not appeal a denial due to abandonment, but the benefit requestor may file a motion to reopen. See 8 CFR 103.2(b)(15) . See Notice of Appeal or Motion ( Form I-290B ). A new proceeding will not be affected by the withdrawal or denial due to abandonment, but the facts and circumstances surrounding the prior benefit request will otherwise be material to the new benefit request. See 8 CFR 103.2(b)(15) . See 8 CFR 1.2 (definition of benefit request).

nefit requestor may file a motion to reopen. See 8 CFR 103.2(b)(15) . See Notice of Appeal or Motion ( Form I-290B ). A new proceeding will not be affected by the withdrawal or denial due to abandonment, but the facts and circumstances surrounding the prior benefit request will otherwise be material to the new benefit request. See 8 CFR 103.2(b)(15) . See 8 CFR 1.2 (definition of benefit request).

[126] See 8 CFR 103.2(b)(13) (“If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the benefit request may be summarily denied as abandoned, denied based on the record, or denied for both reasons.”).

[127] See 8 CFR 103.2(b)(16)(i) .

[128] Information that the requestor has forgotten is not considered information that the requestor is unaware of and USCIS is generally not required to disclose such information. See Sardo v. DHS , 284 Fed. Appx. 262, 266 (6th Cir. 2008). Information included on a form that the requestor, person authorized to sign on behalf of the requestor, or their G-28 counsel has signed is considered to be imputed knowledge of the requestor, as are documents or statements submitted with or in furtherance of the benefit requested on that form, regardless of whether the requestor or alien beneficiary alleges a lack of awareness.

[129] See 8 CFR 103.2(b)(16)(i) . See Matter of Cuello (PDF) , 20 I&N Dec. 94, 96-98 (BIA 1989).

[130] See Part A, Public Services, Chapter 7, Privacy and Confidentiality [ 1 USCIS-PM A.7 ]. See Privacy Act of 1974, Pub. L. 93-579 (PDF) (December 31, 1974) (codified at 5 U.S.C. 552a ). See 8 U.S.C. 1367 . See INA 244(c)(6) , INA 210(b)(6) , and INA 245A(c)(5) . See 8 CFR 244.16 , 8 CFR 210.2(e) , 8 CFR 245a.2(t) , 8 CFR 245a.3(n) , 8 CFR 245a.21 , and 8 CFR 208.6 .

Dec. 94, 96-98 (BIA 1989).

[131] See Classified National Security Information, 75 FR 707 (PDF) (Dec. 29, 2009). See 8 CFR 103.2(b)(16)(iv) . See DHS Policy and Guidelines for the Use of Classified Information in Immigration Proceedings (PDF) , issued May 9, 2024.

[132] This generally includes Violence Against Women Act (VAWA) self-petitioners; applicants and petitioners for, and recipients of, T and U nonimmigrant status; and abused spouses of certain persons applying for employment authorization under INA 106 .

[133] See Part A, Public Services, Chapter 7, Privacy and Confidentiality [ 1 USCIS-PM A.7 ].

[134] See 8 CFR 208.6 . This also applies to withholding of removal under Article 3 of the Convention Against Torture.

[135] See National Security Information, 47 FR 14667, 14874 (PDF) (Apr. 6, 1982).

[136] See 8 CFR 103.2(b)(16)(iv) .

[137] This refers to information that is subject to what is sometimes known informally as the third-agency rule.

[138] See Part A, Public Services, Chapter 7, Privacy and Confidentiality [ 1 USCIS-PM A.7 ].

ithholding of removal under Article 3 of the Convention Against Torture.

[135] See National Security Information, 47 FR 14667, 14874 (PDF) (Apr. 6, 1982).

[136] See 8 CFR 103.2(b)(16)(iv) .

[137] This refers to information that is subject to what is sometimes known informally as the third-agency rule.

[138] See Part A, Public Services, Chapter 7, Privacy and Confidentiality [ 1 USCIS-PM A.7 ].

[139] For example, DOS visa records covered under INA 222(f) and consular return memoranda are considered other agency documents, and unclassified derogatory information contained in such records and memoranda may generally be disclosed with a few exceptions. For instance, USCIS cannot disclose information about DOS’s investigatory methods, the identity of an information source, DOS officials’ names and identifiers, or perceptions, opinions, or internal deliberations by DOS. All external agencies that share information with DHS should define the responsibilities and requirements in a Memorandum of Understanding or Memorandum of Agreement.

[140] See the Federal Information Security Modernization Act of 2014, Pub. L. 113-284 (PDF) (December 18, 2014).

[141] USCIS must follow standard procedures for handling sensitive personally identifiable information. See Part A, Public Services, Chapter 7, Privacy and Confidentiality [ 1 USCIS-PM A.7 ].

[142] See Safeguarding Sensitive But Unclassified (For Official Use Only) Information (PDF) , DHS Management Directive 11042.1, signed January 6, 2005.

ct of 2014, Pub. L. 113-284 (PDF) (December 18, 2014).

[141] USCIS must follow standard procedures for handling sensitive personally identifiable information. See Part A, Public Services, Chapter 7, Privacy and Confidentiality [ 1 USCIS-PM A.7 ].

[142] See Safeguarding Sensitive But Unclassified (For Official Use Only) Information (PDF) , DHS Management Directive 11042.1, signed January 6, 2005.

[143] Notably, 8 CFR 103.2(b)(16) does not require USCIS to provide the benefit requestor with an opportunity to inspect actual evidence or cross-examine witnesses. See Owusu-Boakye v. Barr , 376 F.Supp.3d 663, 678-79 (E.D. Va. 2019), aff’d, 836 F. App’x 131 (4th Cir. 2020). See Koffi v. Holder , 487 F. App’x 658, 660–61 (2d Cir. 2012) and Mangwiro v. Johnson , 554 F. App’x 255, 261 (5th Cir. 2014). 8 CFR 103.2(b)(16) only requires USCIS to inform the benefit requestor of derogatory information and offer the benefit requestor an opportunity to rebut it. See Zizi v. Field Office Director , 753 F. App’x 116, 117 (3d Cir. 2019). Judicial decisions in several jurisdictions impose different requirements in the visa petition context.

[144] For example, bank records, pay stubs, or other records about an individual’s income or finances.

[145] Various laws and regulations may limit or prevent USCIS from disclosing information about or from a third party. See Privacy Act of 1974, Pub. L. 93-579 (PDF) (December 31, 1974) (codified at 5 U.S.C. 552a ) and FOIA Improvement Act of 2016, Pub. L. 114-185 (PDF) (June 30, 2016) (codified at 5 U.S.C. 552 ). Other protective measures include the Right to Financial Privacy Act of 1978, Pub. L. 95-360 (PDF) , 92 Stat. 3641, 3697 (November 10, 1978) (codified at 12 U.S.C. 3401 and following); the Health Insurance Portability and Accountability Act (HIPAA) of 1996,Pub. L. 104-191 Pub. L. 104-191 (PDF) (August 21, 1996); 45 CFR Part 2 ; the Electronic Communications Privacy Act of 1986, Pub. L. 99-508 (PDF) (October 21, 1986) (codified at 18 U.S.C

t to Financial Privacy Act of 1978, Pub. L. 95-360 (PDF) , 92 Stat. 3641, 3697 (November 10, 1978) (codified at 12 U.S.C. 3401 and following); the Health Insurance Portability and Accountability Act (HIPAA) of 1996,Pub. L. 104-191 Pub. L. 104-191 (PDF) (August 21, 1996); 45 CFR Part 2 ; the Electronic Communications Privacy Act of 1986, Pub. L. 99-508 (PDF) (October 21, 1986) (codified at 18 U.S.C. 2701 and following); the Fair Credit Reporting Act, Pub. L. 91-508 (PDF) , 84 Stat. 1114, 1127 (October 26, 1970) (codified at 15 U.S.C. 1681 and following); and the Family Educational Rights and Privacy Act of 1974, Pub. L. 93-380 (PDF) , 88 Stat. 484, 571 (August 21, 1974) (codified at 20 U.S.C. 1232g ). This is not an exhaustive list.

[146] Some courts have addressed how USCIS provides notice of derogatory information relevant to the adjudication of a Petition for Alien Relative ( Form I-130 ), generally finding that summarizing derogatory information is sufficient under 8 CFR 103.2(b)(16) . See Mestanek v. Jaddou , 93 F.4th 164 (4th Cir. 2024); Ghaly v. INS , 48 F.3d 1426, 1434 (7th Cir. 1995); Diaz v. U.S. Citizenship & Immigration Servs ., 499 F. App'x 853, 855 (11th Cir. 2012); Hassan v. Chertoff , 593 F.3d 785, 789 (9th Cir. 2010); Ogbolumani v. Napolitano , 557 F.3d 729, 735 (7th Cir. 2009); Owusu-Boakye v. Barr , 376 F.Supp.3d 663, 675 (E.D. Va. 2019); Brinklys v. Johnson , 175 F.Supp.3d 1338, 1353-56 (M.D. Fla. 2016); Mangwiro v. Johnson , 554 F. App’x 255, 261-62 (5th Cir. 2014). In some jurisdictions, USCIS must provide the petitioner with “specific, rebuttable details” or the “underlying documents” when USCIS intends to deny a family-based petition based on derogatory information of which the petitioner is unaware. See Zerezghi v. USCIS (PDF) , 955 F.3d 802, 810 (9th Cir. 2020)

338, 1353-56 (M.D. Fla. 2016); Mangwiro v. Johnson , 554 F. App’x 255, 261-62 (5th Cir. 2014). In some jurisdictions, USCIS must provide the petitioner with “specific, rebuttable details” or the “underlying documents” when USCIS intends to deny a family-based petition based on derogatory information of which the petitioner is unaware. See Zerezghi v. USCIS (PDF) , 955 F.3d 802, 810 (9th Cir. 2020). The Board of Immigration Appeals (BIA) has not directly spoken to the method of providing derogatory information for a Form I-130 in a precedent decision, however the BIA has generally found that a visa petition revocation based on an “unsupported statement or unstated presumption, or where the petitioner is unaware and has not been advised of derogatory evidence…cannot be sustained." See Matter of Estime (PDF) , 19 I&N Dec. 450 (BIA 1987).

[147] See Section F, Requests for Evidence and Notices of Intent to Deny [ 1 USCIS-PM E.6(F) ].

[148] If the derogatory information is disclosed during an interview, the officer records the information and the benefit requestor’s rebuttal. See Section D, Types of Evidence, Subsection 2, Testimonial Evidence [ 1 USCIS-PM E.6(D)(2) ].

[149] See 8 CFR 103.2(b)(16) . A determination of statutory eligibility must be based only on information contained in the record of proceeding that is disclosed to the benefit requestor, except as provided in 8 CFR 103.2(b)(16)(iv) . See 8 CFR 103.2(b)(16)(ii) .

[150] Any attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth lies, will not suffice. See Matter of Ho , 19 I&N Dec. 582 (BIA 1988).

[15] For example, a benefit requestor’s tax return statement submitted with the Form I-130 that USCIS uses as evidence of a lack of a qualifying spousal relationship.

[152] For example, records such as marriage certificates or personal financial statements submitted with a previous spousal petition.

ointing to where the truth lies, will not suffice. See Matter of Ho , 19 I&N Dec. 582 (BIA 1988).

[15] For example, a benefit requestor’s tax return statement submitted with the Form I-130 that USCIS uses as evidence of a lack of a qualifying spousal relationship.

[152] For example, records such as marriage certificates or personal financial statements submitted with a previous spousal petition.

[153] USCIS is not required to disclose derogatory information of which the benefit requestor is aware. See 8 CFR 103.2(b)(16) . See Section F, Requests for Evidence and Notices of Intent to Deny [ 1 USCIS-PM E.6(F) ]. However, USCIS may disclose derogatory information that the benefit requestor may be aware of to ensure the benefit requestor has sufficient opportunity to rebut information used in an adverse decision.

[154] For example, officers may provide a copy of the source document containing derogatory information, such as a lease agreement, in instances where the document contains no privileged or confidential information, or information that is otherwise prohibited from disclosure.

[155] USCIS must not provide screenshots of information obtained from DHS or other third agency systems absent permission from the data owner. If an adverse decision is based primarily on derogatory information that originates from such systems, any disclosure must be in a detailed summary statement and is subject to the terms and conditions of applicable data sharing agreements, such as the agreement between USCIS and DOS on disclosure authorization requirements.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.