U.S. Citizenship and Immigration Services (USCIS) recently updated policy memorandum (PM) that provides guidance to USCIS adjudicators regarding their discretion to deny a visa petition application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when the required initial evidence has not been submitted or the submitted evidence of record fails to establish the requested class of eligibility.
This updated guidance will be effective starting September 11, 2018 and will be applicable to all the applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received after that date. Due to preliminary injunctions issued by courts in California and New York, this new PM does not change the RFE and NOID policies and practices that apply to the adjudication of DACA requests.
For too long, the immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners.
USCIS stated that through this policy change, USCIS is trying to restore full discretion to the immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits. It also stated that this policy change will discourage frivolous filings and skeletal applications, ensure that the resources are not wasted, and ultimately improve the agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with the laws.
The 2013 Policy Memorandum addressed policies for the issuance of RFEs and NOIDs when the evidence submitted at the time of filing the application or petition did not establish the eligibility for the requested class. In practice, the 2013 Policy Memorandum limited the denials without RFEs or NOIDs to statutory denials by providing that RFEs should be issued unless there was “no possibility” of approval of the application or petition. This “no possibility” policy limited the application of an adjudicator’s discretion.
The new policy implemented in this guidance will restore full discretion to the adjudicator to deny applications, petitions, and requests without first issuing an RFE or a NOID, as and when appropriate. This policy is intended 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.
USCIS will continue to issue statutory denials when appropriate without first issuing an RFE or NOID when the applicant, petitioner, or requestor 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.
If all the required initial evidence is not submitted with the benefit request, USCIS, in its discretion, may deny the benefit request for failure to establish eligibility based on lack of required initial evidence.
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
Cases where the regulations, the statute, 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 such evidence submitted. For example, an Affidavit of Support (Form I-864), if required, was not submitted with an Application to Register Permanent Residence or Adjust Status (Form I-485). For more latest news and updates, please visit www.emandilaw.com.