Changes to the Way in Which Petitions Are Denied

You Don’t Get a Second Chance – New USCIS Memo Changes the Way in Which Petitions Are Denied

USCIS published a new policy memorandum in July 2018 and the document addresses the issuance of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). As per the new regulations that will become effective on September 11, 2018, the USCIS will be capable of denying a case without first issuing a RFE or a NOID.

How is the New Policy Different from Existing Practices?

Under existing policies, USCIS can still deny a case without issuing an RFE or an NOID. For such a denial to occur, however, certain conditions will have to be met.

These conditions include having an applicant or a petitioner that has no legal basis for the benefit or an applicant that submitted a request under a terminated program. Thus, the ability to deny the application without RFEs or NOIDs was quite restricted.

If these pretty specific conditions were not met, the USCIS had an obligation to issue an REF or an NOID before the denial.

As you can see, the new policy increases the scope of situations in which denials can occur without RFEs or NOIDs. The memo lists examples of situations in which a denial would take place without issuing an RFE or an NOID for the failure to establish eligibility on the basis of required initial evidence.

The first situation involves waiver applications that have been submitted with either limited supporting evidence or no evidence at all.

The second situation involves all cases and submissions in which official documents or other types of evidence have to be provided at the time of filing for the purpose of establishing eligibility but are missing. A simple example of this scenario is employment-based submissions that necessitate an affidavit of support. If the affidavit is not submitted alongside the application, the USCIS will have the right to deny a case without issuing an RFE or an NOID.

Why is This Bad News for Applicants?

The ability to deny a case without issuing a Request for Evidence or a Notice of Intent to Deny is really bad news for all applicants.

Immigrant and non-immigrant visa applicants who fail to provide sufficient documentation to the USCIS will essentially be denied without getting a second chance, an opportunity to submit the missing documents and eventually get an approval.

As per the USCIS announcement, the new policy is put in place to curb frivolous or incomplete applications. The aim is to make applicants much more diligent when it comes to the collection and the submission of documents. Individuals who make an honest mistake, however, will also become vulnerable.

Immigration adjudicators are given all the power under the new provision. The memorandum states that:

“An officer should not request evidence that is outside the scope of the adjudication or otherwise
irrelevant to an identified deficiency. In general, officers may, but are not required to, issue RFEs or
NOIDs, and they retain the discretion to deny a request for ineligibility without issuing an RFE or
NOID.”

This means that adjudicators have the power to verify the accuracy of the submitted information in existing databases or via a reference to publicly available information. If the information provided in the application is misleading or incomplete, it will be up to the adjudicator to decide whether to deny the case without the issuing of an RFE or a NOID.

More Denials Starting September 11?

The new USCIS memo is yet another recent provision that is making the process more complex for immigrants. Starting September 11, the number of denials will potentially increase (exponentially) and applicants will be denied an opportunity to rectify the error and go through a successful process.

The lack of sufficient initial evidence and the fact that a decision is to be made at the officer’s discretion both leave room for error and denials of individuals who would otherwise have been successful applicants. Subjective viewing of applications is possible and there will be no opportunity for challenging the decision.

H1B visa applicants could face additional problems due to the fact they will have insufficient time to apply.

The current processing times for extension of stay or change of status range between nine and 12 months. Even if application occurs right now, it’s still possible to fail to get a response within the visa expiry period. This means that an applicant who wishes to legally extend their stay will be incapable of doing so before the new provisions become effective on September 11.

While USCIS is attempting to assure applicants that honest mistakes will not be penalized, the subjective nature of the process troubles many. A consultation with an experienced immigration attorney and a thorough review of the documentation will be needed as soon as possible to deal with the changes and their potential consequences.