** LEGAL UPDATE **
On July 13, 2018, United States Citizenship and Immigration Services (USCIS) issued a new policy memorandum that has the potential to drastically alter the government’s decision-making process on most immigration applications. The new policy memorandum affects two types of notifications commonly sent to applicants for immigration benefits:
The new guidance puts increased power into the hands of the adjudicator (the USCIS officer reviewing the application) and gives officers the ability to deny certain cases without providing the applicant a chance to first respond.
A Request for Evidence is traditionally issued by USCIS when an application is missing a particular piece of initial evidence, such as joint bank statements or birth certificates. A NOID is a letter issued by USCIS when an applicant has provided sufficient initial evidence to satisfy the application requirements but, for some other reason, the USCIS officer does not believe that the applicant has established eligibility or that the case should be approved.
The July 13 memo supersedes previous guidance from 2013, which stated that adjudicators should almost always issue an RFE or a NOID prior to denying a case. They were permitted to deny immediately only when there was no possibility that the issue could be cured through additional evidence.
The new guidance terminates this policy. It allows USCIS to deny the application at its discretion without allowing the applicant to submit additional evidence. The memo states that the adjudicator can “deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate.” This change is intended to streamline USCIS decision-making, and 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.”
The new memorandum also strongly discourages the use of follow-up requests for additional information. In the interest of expediency, USCIS officers who issue RFEs or NOIDs are now urged to decide a case based on the information received, instead of getting back in touch with applicants to request missing information.
Many immigration advocates are concerned with such a dramatic policy shift. They fear that this will lead to an increase in the abuse of discretion by individual USCIS officers. Although the memo notes that this new policy is not intended to penalize “innocent filers,” the memo does not define this term. Under this new policy, an applicant might not have any idea that USCIS intends to deny the case before receiving a denial letter.
Worse yet, immigration attorneys are well acquainted with situations where USCIS and related agencies asked for information that had already been submitted—in other words, made a mistake. With immediate denials, the possibilities for applicants to undo those mistakes is reduced.
The new memo gives wide latitude to the individual USCIS officer to decide whether a case should be denied or not. USCIS officers can now deny applications without issuing a NOID or RFE “when appropriate.” However, “when appropriate” is not clearly defined in the memorandum.
USCIS will deny any filing in which the applicant “has no legal basis for the benefit/request sought, or submits a request for a benefit or relief under a program that has been terminated.” For example, if a U.S. citizen grandparent petitions for a grandchild (which is not an eligible visa category), USCIS can issue a statutory denial without first issuing an RFE or NOID. Likewise, if a Nicaraguan citizen applied for temporary protected status (TPS), USCIS could statutorily deny immediately, because the registration period has ended. These statutory denials are clearcut.
However, the memorandum is vague when defining other reasons an officer can preemptively deny an application. USCIS may now deny when an officer deems the initial evidence submitted in an application packet insufficient. There is no bright line by which to determine how much initial evidence is sufficient, so determinations will likely vary between individual USCIS officers.
USCIS may also deny if an applicant fails to submit a required form in the application packet (for example, fails to submit the Form I-864 Affidavit of Support as part of an adjustment of status application). Applicants are therefore strongly advised to have an attorney review their initial filing and ensure that all required forms are included.
There is at least one exception for failing to submit a required form. Adjustment of status applications must typically include the Form I-693 Medical Examination, which costs several hundred dollars to obtain from a qualified physician. These medical examinations are valid for only one year from the date of the exam. However, many adjustment applicants must wait for over a year before they receive a decision from USCIS on their case, especially given the increasing wait times under the Trump administration. USCIS has stated that the Form I-693 may be submitted at a later date, in order that applicants do not have to pay additional fees for a second exam.
If USCIS issues a denial under this new policy, applicants have few options. They can appeal the denial, if it's one of certain types of applications. However, this option is fraught with uncertainty. Will a USCIS officer’s failure to issue an RFE or NOID be considered an abuse of discretion and provide sufficient grounds for an appeal? For example, what if an applicant claims to have submitted sufficient initial evidence, but the USCIS officer wrongly determined otherwise and denied the case? It’s unknown whether this will be sufficient grounds for appeal under the current administration.
If an RFE or NOID requested information that’s outside the scope of the application, however, then a subsequent denial may still be grounds for appeal.
Applicants can also choose to refile the entire application and pay all the fees again, correcting whatever issue is listed in the denial notice. This will likely be the fastest solution.
A denial under the Trump administration now carries increasingly high stakes. Under the terms of a June 28, 2018 memorandum, USCIS is now encouraged to issue Notices to Appear (NTAs) upon denial. An NTA is the document charging someone with immigration violation(s) and informing him or her that removal proceedings have been initiated in immigration court.
Under the new guidance, applicants for immigration benefits may find their cases denied without first receiving an RFE or a NOID. This could result in expensive fees to refile or even the commencement of removal proceedings. An applicant should therefore ensure that the application packet is as comprehensive as possible prior to filing, in order to prevent a summary denial. Consult with an immigration attorney to ensure you have met all the evidentiary requirements prior to submitting your application.
Effective Date: July 13, 2018