USCIS Policy Change and Its Harsh Consequences
On July 13, 2018, U.S Citizenship and Immigration Services issued a new guidance memo that will take effect on September 11, 2018. The Policy Memorandum (PM) offers guidance to U.S. Citizenship and Immigration Services (USCIS) panel of adjudicators whether to issue a denial for an application, petition, or to issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if preliminary evidence is not submitted or if the evidence in the record does not establish eligibility. Everyone from asylum seekers to petitioners for H1B visas will experience the impact of this policy change, with very limited exceptions.
So, what exactly is a RFE? A Request for Evidence is traditionally issued by USCIS when an application is missing a certain piece of initial evidence, such as joint bank statements or birth certificates. While a NOID is a letter issued by USCIS when an applicant has provided sufficient initial evidence to satisfy the application requirements, but, for what ever reason, the USCIS officer does not believe that the applicant has established eligibility or that the case should be approved.
The previous Policy Memorandum addressed policies for the issuance of RFE’s and NOID’s when the evidence submitted at the time of filing did not establish eligibility. The policy implemented in this updated guidance reinstates the adjudicator has full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate. This policy is intended to discourage frivolous or substantially inadequate filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be meticulous in gathering and submitting essential evidence. This is bad news for applicants of immigrant and non-immigrant visa types, because applicants who have not provided enough evidence to USCIS to establish that they are eligible for the benefit requested can be denied without having the opportunity to cure the flaw.
The new policy memorandum states that where evidence establishing eligibility is not readily available to an immigration officer with the initial filing, adjudicators may use their discretion before issuing a request for evidence “to validate assertions or corroborate evidence and information by consulting USCIS or other governmental files, systems, and databases, or by obtaining publicly available information. 8 USC 1357 (b)”At first, this provision may seem harmless; however, it gives immigration adjudicators the power to verify the accuracy of information submitted by an applicant in government files, systems, and databases. If an applicant has provided disingenuous information on their application, this may be cause for concern.
Examples of filings that may be denied without sending an RFE or a NOID include, but are not limited to:
Waiver applications submitted with little to no supporting evidence
Cases where the regulations, the statue, or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no submission.
Beginning September 11th applicants and their attorneys should be extremely diligent in filing petitions with USCIS, making sure to include all pertinent supporting documentation with the initial filing, otherwise the petition will be denied without receiving the benefit of a request for evidence or notice of intent to deny giving the applicant the chance to fix the deficit. It is not intended to penalize filers for innocent mistakes or misunderstandings of evident
This new memorandum continues the recent trend under the Trump Administration to make the U.S. immigration system more demanding, for both documented and undocumented immigrants. It also highlights the need to ensure cases are properly filed, especially given how unforgiving the USCIS adjudication process can be for employers, employees, and their families.