Removal of the Standardized Request for Evidence Processing Timeframe, 19100-19107 [E7-7228]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Rules and Regulations]
[Pages 19100-19107]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7228]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 204, 214, 245, 245a

[CIS No. 2287-03]
RIN 1615-AB13


Removal of the Standardized Request for Evidence Processing 
Timeframe

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

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SUMMARY: This rule amends Department of Homeland Security regulations 
to provide flexibility to U.S. Citizenship and Immigration Services in 
setting the time allowed to applicants and petitioners to respond to a 
Request for Evidence or to a Notice of Intent to Deny. This rule also 
describes the circumstances under which U.S. Citizenship and 
Immigration Services will issue a Request for Evidence or Notice of 
Intent to Deny before denying an application or petition, but United 
States Citizenship and Immigration Services will continue generally to 
provide petitioners and applicants with the opportunity to review and 
rebut derogatory information of which he or she is unaware. This rule 
also clarifies when petitioners and applicants may submit copies of 
documents in lieu of originals.
    In addition to these changes, this rule removes obsolete references 
to legacy agencies, and it removes obsolete language relating to 
certain legalization and agricultural worker programs.

DATES: This final rule is effective June 18, 2007.

FOR FURTHER INFORMATION CONTACT: Rodger Pitcairn, Program and 
Regulations Development, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 
3000, Washington, DC 20529, telephone (202) 272-8427.

SUPPLEMENTARY INFORMATION:

I. Background
II. Comments Received in Response to the Proposed Rule
    A. Standards and Timeframes for RFE and NOID Responses
    B. Not Issuing at Least One RFE; Making Decisions on the Record
    C. Uniform Application of the ``Preponderance of Evidence'' 
Standard
    D. Relationship to Premium Processing Regulations
    E. Substitution of Form DS-2019; Submitting Copies
    F. Application of the Rule
    G. Use of the Term ``Biometrics Capture''
    H. Technical Correction to Final Rule
III. Statutory and Regulatory Reviews

I. Background

    An applicant or petitioner seeking immigration benefits from U.S. 
Citizenship and Immigration Services (USCIS) must establish eligibility 
for such benefits. 8 CFR 103.2(b)(1). A Request for Evidence (RFE) is a 
notice issued by USCIS to an applicant or petitioner seeking 
immigration benefits requesting initial or additional evidence to 
establish eligibility. Id., 103.2(b)(8). Currently, USCIS must issue an 
RFE when evidence is missing from an application or petition. Id. In 
addition, USCIS must provide twelve weeks for an applicant or 
petitioner to respond to an RFE. Id.
    A Notice of Intent to Deny (NOID) is a written notice issued by 
USCIS to an applicant or petitioner that USCIS has made a preliminary 
decision to deny the application or petition. A NOID may be based on 
evidence of ineligibility or on derogatory information known to USCIS, 
but not known to the petitioner or applicant. USCIS cannot, however, 
issue a NOID based on missing initial evidence if an RFE has not first 
been issued. The NOID provides the applicant or petitioner with an 
opportunity to inspect and rebut the evidence forming the basis of the 
decision to deny the petition or application. An applicant or 
petitioner usually is provided thirty days to respond to the evidence.
    On November 30, 2004, USCIS published a proposed rule to remove 
absolute requirements for, and fixed times to respond to, RFEs and 
NOIDs. 69 FR 69549. USCIS received thirteen comments from individuals, 
community-based groups that assist nonimmigrants and immigrants pursue 
applicants for benefits, law firms, and a national association 
representing immigration attorneys. This final rule adopts the proposed 
rule with minor changes as discussed below.

II. Comments Received in Response to the Proposed Rule

    This final rule addresses requirements that are procedural in 
nature and does not alter the substantive rights of applicants or 
petitioners for immigration benefits. This final rule, therefore, is 
exempt from notice and comment requirements under 5 U.S.C. 553(b)(A), 
and could have been promulgated without public notice and comment. 
USCIS' decision to promulgate a proposed rule does not alter the 
authority to promulgate this rule as a final rule. For example, the 
proposed rule contained a presumptive thirty-day minimum time frame for 
responses, but, after considering the

[[Page 19101]]

comments and the further development of the program, this final rule 
does not include a specific presumptive minimum time frame for 
responses. See Hurson Assoc. Inc., v. Glickman, 229 F.3d 277 (D.C. Cir. 
2000) (rule eliminating face-to-face process in agency review of 
requests for approval was procedural and not subject to notice-and-
comment rulemaking); JEM Broadcasting v. FCC, 22 F.3d 320 (D.C. Cir. 
1994) (challenge to the ``hard look'' rules is untimely; elimination of 
opportunity to correct errors in application was procedural rule not 
subject to notice and comment); see also Public Citizen v. Department 
of State, 276 F.3d 634 (D.C. Cir. 2002) (cut-off policy was procedural 
and exempt from notice and comment provisions). USCIS, however, values 
public comment on the proposed timeframes for RFEs and NOIDs and 
accordingly solicited public comment on the proposed rule. The comments 
provided to USCIS have been valuable in considering the changes 
promulgated in this final rule and are discussed below.

A. Standards and Timeframes for RFE and NOID Responses

    In the proposed rule, USCIS suggested eliminating the current 
twelve-week standard timeframe for all applicants and petitioners to 
respond to an RFE in favor of a more flexible approach that would 
tailor the timeframes to the evidence requested and circumstances. The 
proposed rule would have set a new minimum response window of 
``generally no less than 30-day[s].'' The proposed rule would have made 
similar changes for responding to the NOID. USCIS asked for comments on 
specific timeframes for various kinds of applications and petitions and 
evidence.
    No commenters suggested specific timeframes for each circumstance 
and case type, but two commenters suggested expanding the current 
twelve-week standard to give applicants and petitioners sixteen weeks 
to respond for cases involving asylum claimants and refugees. Another 
commenter suggested a general sixty-day timeframe for NOIDs. USCIS did 
not propose to extend the current twelve-week maximum, and will not do 
so in its final rule. The flexible timeframes will apply to all 
applicants and petitioners to whom RFEs are issued.
    Several commenters focused on the proposed shift from a twelve-week 
standard for responding to all RFEs to flexible timeframes. Five 
pointed to the fact that the Department of Labor (DOL) has fixed 
timeframes for responding to their RFEs. USCIS evaluates petitions and 
applications in a far wider variety of contexts than DOL and for a far 
broader array of benefits and services. This fact requires greater 
processing flexibility. Accordingly, USCIS declines to adopt the 
standards used by DOL.
    Two commenters recommended that the current twelve-week RFE 
response period remain a standard because it is a predictable baseline. 
One also pointed out that the twelve-week standard actually gives a 
degree of flexibility because applicants and petitioners can choose to 
respond more quickly, often in far less than twelve weeks.
    Some commenters focused on the proposed minimum response time. One 
objected to the idea that USCIS would ``generally'' give not less than 
thirty days to respond, and suggested an actual thirty-day minimum. 
Eight commenters considered thirty days to be too short. Several 
commenters pointed out that it can take more than thirty days to get 
certified copies of tax returns from the Internal Revenue Service 
(IRS). Five commenters noted that it is often difficult to obtain 
documents from foreign countries. Several pointed specifically to 
problems refugees and asylum claimants can experience getting documents 
from the country from which they fled. One commenter suggested that 
providing a minimum of 45 days to respond would be unreasonable for 
most applicants and petitioners.
    USCIS recognizes the value of a predictable timeframe for 
responding to an RFE or NOID, and did not intend to make this an 
unpredictable, discretionary process with timeframes determined by 
individual adjudication officers. USCIS will set clear timeframes and 
standards for submission of different kinds of evidence in different 
circumstances. This rulemaking was designed to give USCIS flexibility 
to set the timeframes for responding to RFEs as a matter of agency 
practice and procedure and to more specifically set a reasonable time 
based upon the nature of the information requested. The timeframes 
would be set out in internal guidance to adjudicators. As many 
practitioners are aware, this guidance is, as a general matter, 
publicly disclosed. At this time, USCIS foresees no reason why this 
guidance would not be publicly disclosed after it is developed or 
whenever it is adjusted.
    Important processing steps (such as background checks) may need to 
be repeated if processing extends beyond certain timeframes. Repeating 
these steps would significantly delay an eventual acquisition of a 
benefit. Longer timeframes can actually work against a timely response 
because applicants and petitioners given almost three months to respond 
may delay responding simply because they consider that additional time 
in the United States to be a benefit.
    Recognizing that the majority of applications and petitions are 
eventually approved, USCIS does not want to arbitrarily restrict a 
reasonable opportunity to submit material to prove eligibility. USCIS 
recognizes that documents from certain countries other than the United 
States are occasionally difficult to obtain; thus, the timeframe 
flexibility will take into account these situations. Nevertheless, most 
applicants and petitioners can provide required documents in fewer than 
twelve weeks. USCIS also provides information explaining how to acquire 
benefits through many sources such as the agency's Web site, 
application forms, call centers, brochures, and field offices. 
Applicants and petitioners can easily follow the instructions provided 
by these resources and obtain all required documents before filing for 
immigration benefits. Applicants and petitioners who submit completed 
applications or petitions will minimize the need for RFE and facilitate 
faster decision by USCIS. CIS has found that in some cases, the 
standard twelve week timeframe serves to encourage applicants or 
petitioners to submit incomplete applications or petitions, relying on 
the RFE process to prompt them to submit the missing documents. The RFE 
process and the ensuing delays slows down the processing. Certain 
applicants and petitioners are also exploiting the RFE process to 
deliberately delay the processing and thus prolong their stay in the 
United States. A flexible RFE timeframe will therefore encourage the 
applicants and petitioners to file complete applications and petitions 
because they risk missing the timeframe and be denied the benefits 
sought to do otherwise.
    USCIS continues to believe a more flexible standard is necessary 
and appropriate to improve adjudication processes, USCIS services, and 
the administration and enforcement of immigration laws. The final rule 
maintains the current twelve-week standard as a ceiling on the response 
time to be provided, and sets a maximum of thirty days to respond to a 
NOID. USCIS intends to issue policy guidance setting clear standards 
for when a timeframe less than these maximums will be afforded prior to 
the effective date of the rule.
    With respect to minimum timeframes, the commenters' concerns should 
be allayed in part by the fact the final rule does not, as one 
commenter feared, let individual adjudicators determine when to offer 
less than thirty days to respond to a NOID and how long to give in such

[[Page 19102]]

instances. Further, USCIS' goal is to establish a single set of 
guidelines and standards that will cover not only requests by mail, but 
also requests for materials made by USCIS during an interview. When 
information is requested during an interview, the individual USCIS 
offices now set timelines for the submission of missing or required 
evidence, often providing less than thirty days for the applicant or 
petitioner to respond. This shorter response time has been very 
effective both for the agency and for applicants and petitioners. To 
ensure that USCIS uses consistent standards across the board, the final 
rule removes the proposed thirty-day guideline in favor of the more 
specific timelines USCIS will set in its field guidance.
    Some of the timeframes mentioned by the commenters are not 
accurate. For example, the IRS may take up to sixty calendar days to 
process a request for an exact copy of a previously filed and processed 
tax return. IRS Form 4506 (revised April 2006). The fee for an exact 
copy of a previously filed and processed tax return at the present time 
is $39. The IRS can, however, provide a transcript of the processed 
return within ten business days, currently at no charge. IRS Form 4506T 
(revised April 2006). Thus, USCIS acknowledges that it can take more 
than thirty days for applicants or petitioners to obtain certified 
copies of processed tax returns. However, USCIS permits applicants or 
petitioners to submit transcripts of processed tax returns; therefore, 
USCIS believes that applicants and petitioners will be able to submit 
transcripts of processed tax returns even if response times to RFEs or 
NOIDs are as short as thirty days.
    USCIS also recognizes the variety of times required to respond to a 
document request. A copy of a State driver's license may easily be 
provided within ten days, while a standard foreign government document, 
such as a current passport that is certified by the issuing government, 
may require a longer timeframe. None of these timeframes, however, 
restrict the applicant's or petitioner's ability to file all of the 
obviously necessary and relevant documents with the original 
application.
    Several commenters who argued in favor of retaining the twelve-week 
standard opportunity to respond to an RFE also asserted that USCIS 
should create a new process allowing extension of the twelve-week 
response for any good cause. Several other commenters suggested such a 
new continuance process should be put in place if USCIS reduces the 
current twelve-week standard. One of these commenters stated the agency 
should consider an extension of up to thirty days where foreign 
documents are to be submitted. Another posited that adjudicators should 
have the discretion to set longer response times.
    The current twelve-week standard as a maximum limit has proven 
effective and efficient to USCIS and its applicants and petitioners. 
This twelve-week maximum will remain the standard response timeframe in 
many instances. Creating a new process to seek continuances to submit 
evidence where the twelve-week cycle remains unchanged or where USCIS 
sets shorter response times based on the evidence requested and 
circumstances would defeat the purpose of increasing the efficiency and 
responsiveness of case processing. Such a process would also often 
result in aliens being allowed to remain in the United States for 
lengthy periods while they try to acquire evidence that should have 
been filed with their application or that is necessary to establishing 
their eligibility for the benefit sought. Accordingly, USCIS declines 
to adopt any additional procedures.

B. Not Issuing at Least One RFE; Making Decisions on the Record

    Ten commenters suggested the proposed regulation would not increase 
efficiency. Four suggested that USCIS would use the rule as an 
inappropriate tool to reduce its backlog. Three pointed out the 
positive aspects of the current RFE process and the opportunity it 
creates to emphasize evidence already in the record that the 
adjudicator may not have fully considered, to clear up 
misunderstandings, and to clarify issues and facts. One commenter 
suggested that at least unrepresented applicants and petitioners should 
always be given an opportunity to correct problems through the RFE 
process. Others recommended that the rule mandate at least one RFE 
where there is any type of deficiency.
    USCIS agrees that the RFE and NOID procedures play valuable roles. 
However, there is no need for an RFE or NOID process if the evidence 
initially submitted is sufficient to make a decision of either 
eligibility or ineligibility. The applicant or petitioner is 
responsible for providing evidence sufficient for USCIS to adjudicate 
the application or petition. 8 CFR 103.2(b)(1). USCIS is not 
responsible for advising the applicant or petitioner of the evidence 
that the applicant or petitioner should submit with each particular 
case beyond providing general filing guidance via form instructions and 
regulations.
    Several commenters focused on the proposed change that would allow 
denial of applications and petitions filed without the required initial 
evidence instead of sending an RFE. One commenter pointed out 
similarities to a previously proposed rule. 56 FR 61201 (Dec. 2, 1991). 
The commenter further noted that the previous rulemaking resulted in 
the current RFE process that USCIS now seeks to amend. 59 FR 1455 
(January 11, 1994).
    USCIS recognizes this similarity. When the proposed rule was issued 
in 1991, the application and petition forms frequently did not clearly 
identify the evidence required to be filed. In response to comments 
received in connection with the 1991 proposed rule regarding the forms, 
the final rule did not contain the automatic denial process.
    Since the 1991 proposed rule, INS and now USCIS have revised the 
immigration benefit forms and instructions to list the initial evidence 
that applicants or petitioners need to file. The forms, with 
instructions in a growing number of languages, are available on paper 
and on USCIS' Web site. Given that the forms provide complete 
information regarding evidentiary requirements, USCIS believes that the 
twelve-week standard RFE requirement for missing initial evidence is 
obsolete and filings should be complete at the beginning of the 
process.
    Recognizing the concern expressed, however, USCIS currently intends 
to limit the application of its discretionary authority to deny an 
application or petition for lack of initial evidence without an RFE to 
cases that are filed with little more than a signature and the proper 
fee, and therefore are substantially incomplete or where the applicant 
or petitioner has failed to demonstrate a basis for eligibility for the 
benefit sought (e.g. an application for adjustment of status as an 
immediate relative), where no information or evidence of a covered 
relationship is provided. These skeletal applications, or applications 
that are filed alleging eligibility for a benefit based upon having 
filed a separate benefit application which has since been denied or of 
which USCIS has no record, clearly do not establish eligibility. DHS 
wishes to make clear that an applicant or petitioner is responsible for 
demonstrating eligibility for the benefit sought and that clearly 
deficient applications or petitions will not be permitted. As with 
RFEs, USCIS intends to issue additional internal

[[Page 19103]]

guidance through policy memoranda, including a stipulated timeframe for 
responding to an RFE based on missing initial evidence. In such a case, 
even within the context of continuing an opportunity to respond to an 
RFE, giving a second opportunity to provide evidence need not result in 
deferring case processing for a full twelve weeks.
    Eight commenters expressed concerns that inexperienced staff given 
added discretion might make too many errors; be unaware of relevant 
business practices, regulations and law; and write RFEs with excessive 
boilerplate requests for unnecessary evidence. One commenter objected 
to the idea that USCIS would deny cases simply because an applicant or 
petitioner did not submit every piece of evidence requested in an RFE, 
pointing out that the current regulations lets applicants and 
petitioners request a decision on the record. Conversely, another 
commenter suggested that the proposed rule at 8 CFR 103.2(b)(13)(i) 
would remove explicit USCIS authority to summarily deny a case as 
abandoned for failure to submit initial and additional requested 
evidence by a required date. Therefore, the commenter requested that 
USCIS reinstate that explicit authority under 8 CFR 103.2(b)(13)(i).
    The final rule retains the current process for requesting a 
decision on the record. If an applicant or petitioner requests a 
decision on the record, USCIS will decide the case based on the record. 
This process has been in effect for more than a decade. The process 
struck a careful balance between giving a controlled process for 
requesting evidence and giving applicants and petitioners the 
opportunity to object and ask for a decision on the record. This 
balance is also essential to ensuring that the adjudicator will be able 
to deny the application or petition on the record, if additional 
evidence is needed, but the requested evidence is not received. An 
applicant's or petitioner's failure to respond to an RFE can close off 
a material line of inquiry or can effectively stop further processing 
towards granting an application or petition, and may be considered a 
factor in evaluating whether an applicant or petitioner has proven 
eligibility for the benefit sought. This final rule incorporates this 
concept and also clarifies USCIS' authority to summarily deny a case as 
abandoned for failure to reply to an RFE or a NOID by a required date. 
The final rule also allows USCIS to deny an application or petition if 
the applicant or petitioner fails to provide requested materials, such 
as photographs, necessary to complete processing and issuing resultant 
documentation.
    One commenter thought that this rule would unfairly burden 
applicants and petitioners due to the ``failure to appear'' provisions 
in 8 CFR 103.2(b)(13). To avoid this result, USCIS has modified the 
final rule. The rule now allows for exceptions where there is evidence, 
such as a prompt change of address or rescheduling request, that the 
agency concludes warrants excusing the failure to appear.
    Several commenters expressed concern with the proposed elimination 
of 8 CFR 245.18(i), which requires USCIS to issue a NOID to a physician 
who does not ``comply with the requirements of paragraphs (f) and 
(g).'' After further analysis, the final rule retains the provision and 
simply removes the timeframes for the applicant's or petitioner's 
response to the NOID in favor of the timeframes USCIS will set for RFEs 
and NOIDs.
    Another commenter highlighted that NOIDs are currently required by 
regulation to provide the benefit seeker with an opportunity to know 
and address otherwise unknown adverse information on which a decision 
is to be made. This final rule maintains the general requirement for a 
NOID prior to any denial based upon derogatory information of which the 
petitioner or applicant is unaware. 8 CFR 103.2(b)(16)(i).

C. Uniform Application of the `Preponderance of Evidence' Standard

    One commenter approved of the ``preponderance of the evidence'' 
standard as proposed at 8 CFR 103.2(b)(8)(i). The commenter, however, 
objected to the proposed language in 8 CFR 103.2(b)(8)(ii), which 
allows USCIS to deny an application or petition, request more evidence, 
or notify the applicant or petitioner of its intent to deny if the 
``evidence submitted does not fully establish eligibility.'' The 
commenter stated,

    [c]onflating the preponderance standard with a ``full 
eligibility'' standard merges two irreconcilable concepts, unless it 
is clear that a preponderance of the evidence does, indeed, 
establish full eligibility. The regulation would be more acceptable 
if the language were changed to delete the ``fully establish 
eligibility'' language, and if language were added to state that the 
only cases that may be denied without an RFE are ones in which there 
is clear evidence of ineligibility.

(Emphases in original).

    In response to these comments, USCIS has modified 8 CFR 
103.2(b)(8)(i) to remove the phrase, ``the preponderance of'' and to 
modify 8 CFR 103.2(b)(8)(ii) to remove the word ``fully.'' USCIS is 
implementing these modifications because it believes that it would be 
inappropriate to apply a single standard in 8 CFR 103.2(b)(8)(i) and 
(ii) to all USCIS adjudications. Furthermore, these modifications 
clarify that adjudications can involve different evidentiary standards 
or burdens. Under current regulations, some applications or petitions 
must demonstrate a preponderance of the evidence, while other 
applications or petitions require clear and convincing evidence, to 
establish eligibility.

D. Relationship to Premium Processing Regulations

    One commenter asserted that if applied to premium processing 
requests, the proposed rule would contravene the existing premium 
processing service regulations at 8 CFR 103.2(f). In making this 
statement, the commenter interpreted the current premium processing 
regulations to require USCIS to issue an RFE or NOID before denying any 
application or petition for which premium processing services have been 
requested. USCIS appreciates this comment and, to clarify the 
applicability of this regulation, 8 CFR 103.2(f) has been modified to 
include ``denial'' in the list of appropriate actions.

E. Substitution of Form DS-2019; Submitting Copies

    One commenter noted that the proposed rule at 8 CFR 103.2(b)(4) 
refers to the obsolete Form IAP-66, and suggesting the reference be 
updated to the DS-2019 which replaced the IAP-66. This correction has 
been incorporated in the final rule.
    The same commenter also requested that applicants be permitted to 
submit a copy of DS-2019 rather than the original, and suggested 
clarification with respect to when originals must be filed. The final 
rule clarifies that although copies of other documents may be 
submitted, those designed or produced for the purpose of evidence with 
a USCIS application, such as the DS-2019, must be submitted in the 
original.
    As a general rule, applicants and petitioners should be allowed to 
keep originals unless the originals are required by regulation to be 
submitted. If there is reason to question the authenticity of the 
original document for which a photocopy has been submitted, USCIS may 
then request the original document. In cases where an applicant or a 
petitioner submits original documents when not required, due to the 
cost involved in returning

[[Page 19104]]

such documents as a matter of course, USCIS will retain the documents 
and make them part of the record. In such cases, applicants or 
petitioners who wish to have their original documents returned to them 
may submit a written request to the office that originally requested 
the records.

F. Application of the Rule

    USCIS' ability to issue shorter RFE and NOID response times will 
apply to any RFE or NOID issued on or after the effective date of this 
rule even if the application or petition was filed before the effective 
date of this regulation. USCIS' discretion to deny cases for lack of 
required initial evidence without first issuing an RFE, however, will 
only extend to petitions and applications that are filed on or after 
the effective date of this regulation.

G. Use of the Term ``Biometrics Capture''

    USCIS received no comments concerning the use of the term 
``biometrics capture,'' rather than ``fingerprinting'' in section 
103.2(b)(13)(ii) of the proposed rule. USCIS believes, however, that an 
explanation of why that term has been adopted in the final would be 
beneficial to the public. While the term, ``biometrics capture'' 
includes fingerprints, it is in fact meant to be a more inclusive term. 
Biometrics capture can include such things as the capture of a digital 
photograph or a digital signature. As technology evolves and data 
collection requirements change, USCIS may change the biometrics 
information it collects or the methods used for such collection. Any 
changes made to the capture of biometrics will be reflected in the 
instructions of the affected form type and/or request for appearance 
for biometrics capture.

H. Technical Correction to the Final Rule

    Amendment 3.a. of the proposed rule revised the terms ``the 
Service'' or ``Service'' to read ``USCIS'' wherever they appeared in 
certain subparagraphs of section 103.2. On May 23, 2006, USCIS 
published an interim final rule in the Federal Register which, among 
other things, changed any reference to ``the Service'' to read 
``USCIS'' in section 103.2.(f)(2). 71 FR 29571. Accordingly, the 
proposed revision to section 103.2(f)(2) is no longer necessary and has 
been withdrawn from the final rule.

III. Regulatory Requirements

A. Regulatory Flexibility Act

    DHS has reviewed this rule in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), and, by approving it, DHS certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities.
    Although some petitions may be submitted by small entities, namely 
United States employers seeking nonimmigrant or immigrant labor, this 
rule is intended to be more flexible in setting time limits for RFEs or 
NOIDs, thereby reducing the timeframe for adjudicating these petitions 
without imposing costs on the entities. USCIS recognizes that this 
change may have a small impact on small business practices or 
productivity due to the change in timeframes for responses to RFEs or 
NOIDS. However, USCIS believes that these changes ultimately will 
benefit affected small businesses, namely because the reduction in 
adjudication timeframes will allow United States employers to receive 
the benefit sought at an earlier date (i.e. the ability to hire 
temporary or permanent foreign employees).

B. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments in the aggregate, or by the private sector, of $100 
million or more in any one year, and will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

D. Executive Order 12866

    DHS considers this rule to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, it was submitted to the Office of Management and 
Budget for review.
    DHS has assessed both the costs and the benefits associated with 
this final rule. There are minimal costs to USCIS associated with 
instructing adjudicators about the options for dealing with deficient 
applications and petitions. Instructions may take the form of policy 
memoranda, amendments to the Adjudicator's Field Manual, or local 
office training modules. USCIS estimates that any costs will be 
absorbed in the current program general expenses that cover issuing 
instructions and training.
    There are a number of benefits to both USCIS and the public. USCIS 
will reduce the number of RFEs and NOIDs and the cycle time for 
responses to such notices, thereby reducing the pending backlog of 
cases. The public will receive fewer and more specific RFE or NOID 
notices, and will benefit from more timely approval of applications and 
petitions.
    The cost to the public is minimal. Currently, if an RFE or NOID is 
issued, the applicant incurs the cost of burden hours to comply with 
the RFE and the cost of resubmitting the response. The procedure 
remains generally the same, though the processing flow and decision 
points have changed to improve overall adjudication efficiency.

E. Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, DHS has determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting or recordkeeping 
requirements inherent in a rule. This rule does not impose any new 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act.

[[Page 19105]]

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 204

    Administrative practice and procedure, Immigration, Reporting and 
recordkeeping requirements.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, 
Reporting and recordkeeping requirements.

8 CFR Part 245

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 245a

    Aliens, Immigration, Reporting and recordkeeping requirements.


0
Accordingly, Chapter I of Title 8 of the Code of Federal Regulations is 
proposed to be amended as follows:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

0
1. The authority citation for part 103 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 
et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 
8 CFR part 2.


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2. Section 103.2 is amended by:
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a. Revising the term ``INS office or Service Center'' to read ``USCIS 
office'' in paragraph (a)(6);
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b. Revising the term ``Service Center'' to read ``service center'' 
wherever that term appears in the last sentence of paragraph (a)(7)(i);
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c. Revising paragraph (b)(1);
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d. Revising paragraph (b)(4);
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e. Revising paragraph (b)(5);
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f. Revising paragraph (b)(8);
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g. Revising paragraph (b)(11);
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h Removing the term ``initial'' in paragraph (b)(12), first sentence;
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i. Revising paragraph (b)(13);
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j. Revising term ``regional commissioner'' to read ``USCIS Director or 
his or her designee'' in paragraph (b)(16)(iii);
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k. Revising the term ``regional commissioner'' to read ``USCIS Director 
or his or her designee'' in the second sentence, and the term 
``regional commissioner's'' to read ``USCIS Director's or his or her 
designee's'' in the third sentence in paragraph (b)(16)(iv);
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l. Revising paragraph (b)(17);
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m. Removing and reserving paragraphs (c) and (d);
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n. Revising paragraph (f)(1).
    The revisions read as follows:


Sec.  103.2  Applications, petitions, and other documents.

* * * * *
    (b) * * *
    (1) Demonstrating eligibility at time of filing. An applicant or 
petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the application or petition. All required 
application or petition forms must be properly completed and filed with 
any initial evidence required by applicable regulations and/or the 
form's instructions. Any evidence submitted in connection with the 
application or petition is incorporated into and considered part of the 
relating application or petition.
* * * * *
    (4) Submitting copies of documents. Application and petition forms, 
and documents issued to support an application or petition (such as 
labor certifications, Form DS 2019, medical examinations, affidavits, 
formal consultations, letters of current employment and other 
statements) must be submitted in the original unless previously filed 
with USCIS. Official documents issued by the Department or by the 
former Immigration and Naturalization Service need not be submitted in 
the original unless required by USCIS. Unless otherwise required by the 
applicable regulation or form's instructions, a legible photocopy of 
any other supporting document may be submitted. Applicants and 
petitioners need only submit those original documents necessary to 
support the benefit sought. However, original documents submitted when 
not required will remain a part of the record.
    (5) Request for an original document. USCIS may, at any time, 
request submission of an original document for review. The request will 
set a deadline for submission of the original document. Failure to 
submit the requested original document by the deadline may result in 
denial or revocation of the underlying application or benefit. An 
original document submitted in response to such a request, when no 
longer required by USCIS, will be returned to the petitioner or 
applicant upon completion of the adjudication. If USCIS does not return 
an original document within a reasonable time after completion of the 
adjudication, the petitioner or applicant may request return of the 
original document by submitting a properly completed and signed Form G-
884 to the adjudicating USCIS office.
* * * * *
    (8) Request for Evidence; Notice of Intent to Deny--(i) Evidence of 
eligibility or ineligibility. If the evidence submitted with the 
application or petition establishes eligibility, USCIS will approve the 
application or petition, except that in any case in which the 
applicable statute or regulation makes the approval of a petition or 
application a matter entrusted to USCIS discretion, USCIS will approve 
the petition or application only if the evidence of record establishes 
both eligibility and that the petitioner or applicant warrants a 
favorable exercise of discretion. If the record evidence establishes 
ineligibility, the application or petition will be denied on that 
basis.
    (ii) Initial evidence. If all required initial evidence is not 
submitted with the application or petition or does not demonstrate 
eligibility, USCIS in its discretion may deny the application or 
petition 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.
    (iii) Other evidence. If all required initial evidence has been 
submitted but the evidence submitted does not establish eligibility, 
USCIS may: deny the application or petition for ineligibility; request 
more information or evidence from the applicant or petitioner, to be 
submitted within a specified period of time as determined by USCIS; or 
notify the applicant or petitioner of its intent to deny the 
application or petition and the basis for the proposed denial, and 
require that the applicant or petitioner submit a response within a 
specified period of time as determined by USCIS.
    (iv) Process. A request for evidence or notice of intent to deny 
will be in writing and will specify the type of evidence required, and 
whether initial evidence or additional evidence is required, or the 
bases for the proposed denial sufficient to give the applicant or 
petitioner adequate notice and sufficient information to respond. The 
request for evidence or notice of intent to deny will indicate the 
deadline for response, but in no case shall the maximum response period 
provided in a request for evidence exceed twelve weeks, nor shall the 
maximum response time provided in a notice of intent to deny exceed 
thirty days. Additional time to respond

[[Page 19106]]

to a request for evidence or notice of intent to deny may not be 
granted.
* * * * *
    (11) Responding to a request for evidence or notice of intent to 
deny. In response to a request for evidence or a notice of intent to 
deny, and within the period afforded for a response, the applicant or 
petitioner may: submit a complete response containing all requested 
information at any time within the period afforded; submit a partial 
response and ask for a decision based on the record; or withdraw the 
application or petition. All requested materials must be submitted 
together at one time, along with the original USCIS request for 
evidence or notice of intent to deny. Submission of only some of the 
requested evidence will be considered a request for a decision on the 
record.
* * * * *
    (13) Effect of failure to respond to a request for evidence or a 
notice of intent to deny or to appear for interview or biometrics 
capture--(i) Failure to submit evidence or respond to a notice of 
intent to deny. 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 application or petition may be summarily denied as abandoned, 
denied based on the record, or denied for both reasons. If other 
requested material necessary to the processing and approval of a case, 
such as photographs, are not submitted by the required date, the 
application may be summarily denied as abandoned.
    (ii) Failure to appear for biometrics capture, interview or other 
required in-person process. Except as provided in 8 CFR 335.6, if USCIS 
requires an individual to appear for biometrics capture, an interview, 
or other required in-person process but the person does not appear, the 
application or petition shall be considered abandoned and denied unless 
by the appointment time USCIS has received a change of address or 
rescheduling request that the agency concludes warrants excusing the 
failure to appear.
* * * * *
    (17) Verifying claimed permanent resident status--(i) Department 
records. The status of an applicant or petitioner who claims that he or 
she is a permanent resident of the United States or was formerly a 
permanent resident of the United States will be verified from official 
Department records. These records include alien and other files, 
arrival manifests, arrival records, Department index cards, Immigrant 
Identification Cards, Certificates of Registry, Declarations of 
Intention issued after July 1, 1929, Permanent Resident Cards (Form I-
551), Alien Registration Receipt Cards (Form I-151), other registration 
receipt forms (Forms AR-3, AR-3a, and AR-103, provided that such forms 
were issued or endorsed to show admission for permanent residence), 
passports, and reentry permits. An official record of a Department 
index card must bear a designated immigrant visa symbol and must have 
been prepared by an authorized official of the Department in the course 
of processing immigrant admissions or adjustments to permanent resident 
status. Other cards, certificates, declarations, permits, and passports 
must have been issued or endorsed to show admission for permanent 
residence. Except as otherwise provided in 8 CFR part 101, and in the 
absence of countervailing evidence, such official records will be 
regarded as establishing lawful admission for permanent residence.
    (ii) Assisting self-petitioners who are spousal-abuse victims. If a 
self-petitioner filing a petition under section 204(a)(1)(A)(iii), 
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is 
unable to present primary or secondary evidence of the abuser's status, 
USCIS will attempt to electronically verify the abuser's citizenship or 
immigration status from information contained in the Department's 
automated or computerized records. Other Department records may also be 
reviewed at the discretion of the adjudicating officer. If USCIS is 
unable to identify a record as relating to the abuser, or the record 
does not establish the abuser's immigration or citizenship status, the 
self-petition will be adjudicated based on the information submitted by 
the self-petitioner.
* * * * *
    (c) Reserved.
    (d) Reserved.
* * * * *
    (f) Requests for Premium Processing Service--(1) Filing 
information. A petitioner or applicant requesting Premium Processing 
Service shall submit Form I-907 with the appropriate fee to the 
Director of the service center having jurisdiction over the application 
or petition. Premium Processing Service guarantees 15 calendar day 
processing of certain employment-based petitions and applications. The 
15 calendar day processing period begins when USCIS receives Form I-
907, with the fee, at the designated address contained in the 
instructions to the form. USCIS will refund the fee for Premium 
Processing Service, but continue to process the case, unless within 15 
calendar days of receiving the application or petition and Form I-907, 
USCIS issues and serves on the petitioner or applicant an approval 
notice, a denial notice, a notice of intent to deny, a request for 
evidence, or opens an investigation relating to the application or 
petition for fraud or misrepresentation.
* * * * *


Sec.  103.2  [Amended]

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3. Section 103.2 is further amended by:
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a. Revising the terms ``the Service'' or ``Service'' to read ``USCIS'' 
wherever those terms appear in the following paragraphs:
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i. Paragraph (a)(7)(i), in the first sentence and the first time it 
appears in the last sentence;
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ii. Paragraph (b)(2)(ii), in the last sentence;
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iii. Paragraph (b)(2)(iii);
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iv. Paragraph (b)(3);
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v. Paragraph (b)(6);
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vi. Paragraph (b)(7);
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vii. Paragraph (b)(9), in the introductory text;
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viii. Paragraph (b)(10);
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ix. Paragraph (d)(2);
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x. Paragraph (e)(1);
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xi. Paragraph (e)(2);
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xii. Paragraph (e)(3), in the introductory text;
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xiii. Paragraph (e)(3)(iii);
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xiv. Paragraph (e)(4)(i);
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xv. Paragraph (e)(4)(iii), in the introductory text;
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xvi. Paragraph (e)(4)(iii)(C);
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xvii. Paragraph (e)(4)(iv), in the second sentence;
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xviii. Paragraph (f)(3), the first and last time the term appears in 
the last sentence;
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xix. Paragraph (f)(4), the first time the term appears in the first 
sentence;
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xx. Paragraph (f)(4), the first time the term appears in the second 
sentence; and
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xxi. Paragraph (f)(4), in the third sentence.
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b. Revising the term ``Service's'' to read ``USCIS' '' in the following 
paragraphs:
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i. Paragraph (b)(15);
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ii. Paragraph (e)(3)(iii); and
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iii. Paragraph (e)(4)(iii)(C).

PART 204--IMMIGRANT PETITIONS

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4. The authority citation for part 204 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 
1255, 1641; 8 CFR part 2.


Sec.  204.1  [Amended]

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5. Section 204.1 is amended by removing paragraph (h).

[[Page 19107]]

Sec.  204.2  [Amended]

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6. Section 204.2 is amended by:
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a. Removing paragraph (c)(3)(ii) and by redesignating paragraph 
(c)(3)(iii) as (c)(3)(ii);
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b. Removing paragraph (e)(3)(ii) and by redesignating paragraph 
(e)(3)(iii) as (e)(3)(ii).

PART 214--NONIMMIGRANT CLASSES

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7. The authority citation for part 214 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant 
to Executive Order 13323, published January 2, 2004), 1186a, 1187, 
1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 643, Pub. L. 
104-208; 110 Stat. 3009-708; section 141 of the Compacts of Free 
Association with the Federated States of Micronesia and the Republic 
of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 
1901, note, and 1931, note, respectively.


Sec.  214.2  [Amended]

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8. Section 214.2 is amended by:
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a. Removing paragraph (h)(10)(ii) and by redesignating paragraph 
(h)(10)(iii) as (h)(10)(ii);
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b. Removing paragraph (k)(10)(iii);
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c. Removing paragraph (l)(8)(i) and by redesignating paragraphs 
(l)(8)(ii) and (l)(8)(iii) as (l)(8)(i) and (l)(8)(ii) respectively;
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d. Revising paragraph (o)(7); and
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e. Revising paragraph (p)(9).
    The revisions read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (o) * * *
    (7) The petitioner shall be notified of the decision, the reasons 
for the denial, and the right to appeal the denial under 8 CFR part 
103.
* * * * *
    (p) * * *
    (9) The petitioner shall be notified of the decision, the reasons 
for the denial, and the right to appeal the denial under 8 CFR part 
103. There is no appeal from a decision to deny an extension of stay to 
the alien or a change of nonimmigrant status.
* * * * *

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9. Section 214.11 is amended by revising paragraph (k)(2) to read as 
follows:


Sec.  214.11  Alien victims of severe forms of trafficking in persons.

* * * * *
    (k) * * *
    (2) Determination by USCIS. An application for T-1 status under 
this section will not be treated as a bona fide application until USCIS 
has provided the notice described in paragraph (k)(3) of this section. 
In the event that an application is incomplete or if the application is 
complete but does not present sufficient evidence to establish prima 
facie eligibility for each required element of T nonimmigrant status, 
USCIS will follow the procedures provided in 8 CFR 103.2(b) for 
requesting additional evidence, issuing a notice of intent to deny, or 
adjudicating the case on the merits.
* * * * *

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10. Section 214.15 is amended by revising paragraph (d) to read as 
follows:


Sec.  214.15  Certain spouses and children of lawful permanent 
residents.

* * * * *
    (d) The definition of ``pending petition.'' For purposes of this 
section, a pending petition is defined as a petition to accord a status 
under section 203(a)(2)(A) of the Act that was filed with USCIS under 
section 204 of the Act on or before December 21, 2000, and has not been 
adjudicated. In addition, the petition must have been properly filed 
according to 8 CFR 103.2(a), and if, subsequent to filing, USCIS 
returns the petition to the applicant for any reason or makes a request 
for evidence or issues a notice of intent to deny under 8 CFR 103.2(b), 
the petitioner must comply with the request within the time period set 
by USCIS. If USCIS denies a petition but the petitioner appeals that 
decision, the petition will be considered pending until the 
administrative appeal is decided by USCIS. A petition rejected by USCIS 
as not properly filed is not considered to be pending.
* * * * *

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

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11. The authority citation for part 245 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 
2681; 8 CFR part 2.


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12. Section 245.18 is amended by revising paragraph (i) to read as 
follows:


Sec.  245.18  How can physicians with approved Forms I-140 that are 
serving in medically underserved areas or at a Veterans Affairs 
facility adjust status?

* * * * *
    (i) What if the physician does not comply with the requirements of 
paragraphs (f) and (g) of this section? If an alien physician does not 
submit (in accordance with paragraphs (f) and (g) of this section) 
proof that he or she has completed the service required under 8 CFR 
204.12(a), USCIS shall serve the alien physician with a written notice 
of intent to deny the alien physician's application for adjustment of 
status and, after the denial is finalized, to revoke approval of the 
Form I-140 and national interest waiver. The written notice shall 
require the alien physician to provide the evidence required by 
paragraph (f) or (g) of this section. If the alien physician fails to 
submit the evidence within the allotted time, USCIS shall deny the 
alien physician's application for adjustment of status and shall revoke 
approval of the Form I-140 and of the national interest waiver.
* * * * *

PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR 
LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF 
THE IMMIGRATION AND NATIONALITY ACT

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13. The authority citation for part 245a continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note.

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14. Section 245a.20 is amended by revising paragraph (a)(2) to read as 
follows:

Sec.  245a.20  Decisions, appeals, motions, and certifications.

    (a) * * *
    (2) Denials. The alien shall be notified in writing of the decision 
of denial and of the reason(s) therefore. An applicant affected under 
this part by an adverse decision is entitled to file an appeal on Form 
I-290B Notice of Appeal to the Administrative Appeals Office (AAO), 
with the required fee specified in 8 CFR 103.7(b)(1). Renewal of 
employment authorization issued pursuant to 8 CFR 245a.13 will be 
granted until a final decision has been rendered on appeal or until the 
end of the appeal period if no appeal is filed. After exhaustion of an 
appeal, an alien who believes that the grounds for denial have been 
overcome may submit another application with fee, provided that the 
application is submitted on or before June 4, 2003.
* * * * *


Sec.  245a.33  [Amended]

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15. Section 245a.33 is amended by removing the second sentence of 
paragraph (b).

    Dated: March 27, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E7-7228 Filed 4-16-07; 8:45 am]
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