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10.3 General Adjudication Procedures [AD01-15]
The following steps apply to all cases processed by the adjudications unit within a service center. Depending upon local procedures, these steps may be handled by one or more designated officers.
- Case Review
Each case must be thoroughly reviewed to determine jurisdiction, presence of required supporting documentation, existence of relating files and basic statutory eligibility.
- IBIS Checks.
- Requirements. An application or petition shall not be approved or revalidated until the name of the applicant or principal beneficiary, and the names of any spouse and children who may derive status through their relationship to that applicant or principal beneficiary, have been checked against the Interagency Border Information System (IBIS). The application/petition is to be notated "IBIS referral" when the check results in any of the adverse information which is identified below. When the IBIS check does not result in adverse information, the file is to be noted -"IBIS ok" and the date. (For instructions regarding annotation of the application/petition see chapter 31 of the Inspector's Field Manual for more detailed information on IBIS.)
- Adverse Information. Adverse information relating to criminal activity or threats to national security must be fully addressed by the officer before any final decision may be made on such cases. Should an adjudicator determine that the derogatory information does not preclude approval of the application/petition, the decision must be supported by a memo to the file signed by the supervisory adjudications officer, and must state the basis for the decision. The derogatory information to be addressed will be those IBIS hits that show a conviction for an aggravated felony or other crime(s) which would render the alien inadmissible, prior deports, warrants, arrests, or threats to national security. If the reason for a warrant or arrest is not stated in the initial IBIS response, that issue must be resolved before the case can move forward to final adjudication.
Questions regarding this memorandum are to be addressed to Frances A. Murphy, Assistant Director, Office of Adjudications, (202) 514-3978, or by e-mail.
- Other Service Records. A check of Headquarters records may also be made with respect to the applicant, petitioner or beneficiary, but only when it is believed such a check would produce pertinent information.
See Chapter 3(B)(1) of the Records Operations Handbook for information on checking other Service records.
If a Headquarters record check was made in addition to a NAILS check, a stamp bearing the legend "NAILS-HQREC CHECKED" shall be placed on the petition, and initialed by the adjudicator; any response returned with notations showing "no record "or" no file exists" shall then be destroyed.
Any further action which may be required, short of approval of the petition, shall not be delayed while the request for the Headquarters record check is pending.
- Adjudication. The adjudicator must carefully examine the application form and all supporting documents. The examination should address (but not be limited to) the following questions:
- Is the form complete and signed?
- Is the applicant or petitioner represented by counsel with Form G-28 on file?
- Are there any responses which require further explanation or indicate there may be a need for additional documentation?
- Are all necessary supporting documents present and translated into English, if necessary?
- Is the beneficiary statutorily eligible for the benefit sought?
- Are all supporting documents authentic and unaltered?
- Is there any reason to suspect fraud?
- Are there any legal precedent decisions or court orders relevant to the case?
- Are there any ancillary applications which should be filed by the applicant (e.g., a waiver application, adjustment application, advance parole request, or employment authorization request)?
- The Burden of Proof. Bear in mind that the burden of proof in establishing eligibility for an immigration benefit always falls solely on the petitioner or applicant. The Service need not prove ineligibility. Each application and petition form includes specific evidence requirements necessary for approval. When an applicant or petitioner can establish that certain primary evidence is unavailable, secondary evidence, also in specific forms, may be provided. Experienced officers become familiar with a wide range of documents submitted as evidence. Sound judgment is required to determine which forms of primary and secondary evidence should be accepted in individual cases. In addition to reliance on past experience, there are sources of information for verifying information discussed in chapter 14. [See Matter of Brantigan, 11 I&N Dec. 453 (BIA 1966).]
Strict rules of evidence used in criminal proceedings do not apply in administrative proceedings. Usually, any oral or documentary evidence may be used in visa petition proceedings. Copies of public documents, certified by the person having custody of the originals, are generally admissible. [See also Chapter 11 of this manual for a discussion of evidence.]
- Inspection of Evidence. The adjudicator must afford a petitioner or applicant an opportunity to inspect and rebut adverse evidence used in making a decision. Prior to denial of any application or petition based on such evidence, the Service routinely issues a "notice of intent" to deny, by letter, explaining the nature of the adverse information. The applicant or petitioner may choose to respond in writing or may ask to inspect the record of proceedings prior to submission of a rebuttal. A notice of intent must specify the date by which a response must be received and instruct the applicant or petitioner that a failure to respond will result in a denial. [See 8 CFR103.2(b)(16).]
- Decision: Approval. If a case is ready for approval, the adjudicator must stamp the action block with his or her approval stamp and approved "security" ink. In some cases, the officer's signature is also required. Depending upon local procedures, a work sheet for clerical action may be completed, or the adjudicator may update the CLAIMS system to initiate generation of an approval notice to the applicant or petitioner and the attorney of record, if any. In some instances, the adjudicator may manually complete processing. The adjudicator must then forward the case file for disposition: to the file room, the National Visa Center or consular post, or another Service office. In emergent cases, the petitioner may request that a cable be sent to the consular post. The cable formats for such notifications are included as Appendix 10-4. Each service center has a quality review process which may review some segment of completed cases for proper adjudication.
- Decision: Denial. If a case is to be denied, the adjudicator must so note the action block and prepare the written denial notice. Denials may consist mainly of "boilerplate" paragraphs explaining the legal basis for the adverse decision or they may be entirely original. In all cases, the specific facts of the individual case must be explained in the decision. If a denial is based on precedent decisions, those decisions should be properly cited in the body of the denial notice. The applicant or petitioner (or representative), must be advised of the action and provided with information concerning his or her right of appeal. Depending upon local procedures, denied cases may be held in suspense until an appeal is filed or the appeal period lapses, or the case file may be sent to another office for follow- up action. Denial decisions are normally sent to a supervisory officer for review and signature prior to mailing. Service of a decision is ordinarily accomplished by routine service as prescribed in 8 CFR 103.5a. Personal service is required only when an adverse action is being initiated by the Service, such as a recission or revocation.
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