US Citizenship and Immigration Services USCIS) issued a policy memo for adjudicators reviewing applications and petitions for immigration benefits that provides them with broader discretion to deny them outright without first sending a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). Such a policy shift is disproportionately punitive and may lead to increased litigation.
The guidance will take effect on September 11, 2018, and will apply to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received after that date. It will overturn a 2013 policy memo on the issuance of RFEs and NOIDs when the evidence submitted at the time of filing did not establish eligibility. The 2013 policy memo restricted denials without RFEs or NOIDs only where there was “no possibility” of approval.
The new policy provides the adjudicator with full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate. Its alleged mission is to “discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence.” However, this new guidance appears to be no more than a thinly veiled attempt by this administration to discourage any and all immigration to the US.
USCIS will issue denials without first issuing an RFE or NOID when there is no legal basis for the requested benefit, or requests a benefit or relief under a terminated program. Also, if all of the required initial evidence is not initially filed with the application, then USCIS, in its discretion, may deny the benefit request for failure to establish eligibility based on lack of required initial evidence. Its examples of filings that may be denied without sending an RFE or NOID include, but are not limited to:
- Waiver applications submitted with little to no supporting evidence; or
- Affidavit of Support (Form I-864), if required, was not submitted with an Application to Register Permanent Residence or Adjust Status (Form I-485).
Also, such a policy change could ultimately lead to more beneficiaries or applicants being placed in removal proceedings, in light of USCIS’s other recent policy memo shifting the burden to USCIS in issuing notices of appearance (NTAs) to appear in removal proceedings and broadening the circumstances in which it must issue such NTAs.
In light of the severe consequences of filing deficient immigration applications and petitions, it is more important than ever for employers and individuals to retain highly experienced attorneys for filing such immigration cases.