Practice Alert: Submitting Initial Evidence and Documentation with Form I-485

AILA’s National Benefits Center Liaison Committee is receiving reports of the National Benefits Center (NBC) summarily denying I-485 applications after receipt of the form and without the issuance of a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). The decisions cite lack of sufficient initial evidence as the basis for the denial. In some instances, members report that such evidence was included in the filings. Historically, when NBC’s mail room determined initial evidence was lacking, the application package would either be rejected and returned, or the filing would be accepted and an RFE or a NOID would subsequently be issued to request the missing evidence.

These recent ’Statutory Denials’ may be a sign of further enforcement of the July 13, 2018, USCIS Policy Memorandum, “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b).” This PM and revisions to Chapter 10.5 of the AFM provide an adjudicator with substantial discretion to deny an application or petition when initial evidence is lacking without the issuance of an RFE or NOID.

To reduce the likelihood of a Statutory or Summary Denial for lack of initial evidence, the NBC Liaison Committee wishes to remind AILA Members of the following practice pointers:

  • Carefully review all form instructions before submitting a petition or application and check the USCIS website to make sure the correct edition of the form is being used.
  • Before mailing a petition or application, be certain all forms are fully completed and signed. While required on some forms but not yet required on all forms, it is recommended to type or print “N/A” in all empty boxes unless otherwise instruction and to type or print “none” where a numeric response is zero or none unless otherwise directed.
  • Double-check your mailing to ensure all required forms, initial evidence and any additional supporting evidence, as well as the correct filing fee(s) payment is included. If any required evidence is unavailable, including initial evidence and/or supporting documents (evidence of bona fide marriage, for example), a detailed explanation and any secondary evidence should be provided. (See reference below.)
  • Include a Cover Letter and/or Exhibit List on top of the filing to clearly identify all items being submitted.
  • Birth Certificates, Marriage Certificates, Divorce Decrees – ensure the items submitted match those identified in the U.S. Department of State’s Foreign Affairs Manual (FAM) or Reciprocity and Civil Documents list. Check the Reciprocity and Civil Documents list frequently, as there are often unannounced changes.1 If the primary document is not available, applicants should follow instructions in the reciprocity list and make every effort to obtain the primary document. Secondary evidence should only be submitted if the primary document is unavailable as instructed below.
  • Proof of Lawful Admission or Parole – include a copy of all relevant entry and admission documents, i.e., I-94, CBP admission stamp, visa stamp. If one or more of these items are not available, applicants should provide secondary evidence.

    Per 8 CFR 103.2(b)(2)(i), an applicant must show that primary evidence is not available, before the applicant may offer secondary evidence or written testimony:

(2) Submitting secondary evidence and affidavits –

General. The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit secondary evidence, such as church or school records, pertinent to the facts at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence.

Demonstrating that a record is not available. Where a record does not exist, the applicant or petitioner must submit an original written statement on government letterhead establishing this from the relevant government or other authority. The statement must indicate the reason the record does not exist and indicate whether similar records for the time and place are available. However, a certification from an appropriate foreign government that a document does not exist is not required where the Department of State's Foreign Affairs Manual indicates this type of document generally does not exist. An applicant or petitioner who has not been able to acquire the necessary document or statement 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, it may require that the applicant or petitioner submit the required document or statement.

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1. With specific reference to evidence of admission, parole or an entry under Matter of Quilantan, NBC previously stated that “secondary evidence may include documents created and maintained in the ordinary course of business by an individual or entity other than DHS. … For secondary evidence, the chief concerns would be (a) is the document authentic and (b) what can reasonably be inferred from the document about whether the claimed admission took place. Written testimony can be provided if the applicant shows that neither primary nor secondary evidence is available. The regulation refers to “affidavits,” but statements “signed under penalty of perjury under United States law” have the same effect. 28 U.S.C. 1746. Written testimony must be based on the personal knowledge of the signer. It is likely that a statement that provides considerable detail about the claimed time, date and place of admission, the possession of travel documents (and if so, what documents), any exchange with the inspector that the individual may have had or witnessed, etc., would be more persuasive that one that makes merely conclusory allegations. As noted, primary evidence, if available, must be presented. If it is not available, the applicant must specifically assert that it is not available. If the applicant does not respond to an RFE requesting primary evidence, the I-485 and ancillary application may be denied as abandoned. Thus, the applicant must respond, even if the proper response is that there is no primary evidence available, and the applicant is relying on secondary evidence or written statements.” (AILA Doc. No. 16080935)

Cite as AILA Doc. No. 20061131.