A new policy guidance memo issued July 13 by U.S. Citizenship and Immigration Services (USCIS) instructs officers to go straight to denying a case if – in the view of the officer – the original filing lacks sufficient initial evidence to establish that the Petitioner or Applicant is eligible for the requested classification or benefit. The new policy is to go into effect September 11, 2018.
The guidance applies across employment- and family-based categories and across nonimmigrant and immigrant visas.
The new guidance specifically withdraws a 2013 guidance memo which instructed adjudicators to limit straight denials (those issued without first issuing a “Request for Evidence (“RFE”) or Notice of Intent to Deny (“NOID”) to situations where there was no possibility that additional evidence could make a case approvable. The practice has been to issue RFEs or NOIDs unless, in essence, the original filing submitted made clear that the applicant or beneficiary wasn’t qualified for the benefit sought.
Under the policy as it exists now, it has been possible to address specific concerns of an adjudicating officer – such concerns or reservations could be raised by the officer in an RFE or NOID and addressed in a response from a petitioner or applicant. The adjudicating officer could of course still deny the petition or application if still unsatisfied that the requirements had not properly been addressed.
It remains unclear at this stage how the new guidance will be implemented in practice – whether even a single item perceived by the officer to be incompletely documented will result in denial, or whether this will apply only to so-called “skeletal” filings intended only to meet a deadline or secure a filing date. The text of the government memo includes language to the effect that the 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. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.” [Memo PM-602-0163 at 2]. However, we don’t yet know if application of the policy will truly be limited to these “frivolous” or “substantially incomplete” filings in practice.
Taken together with another new policy released at the end of June and discussed in our earlier post here, this represents a frightening change for USCIS. Historically, the agency has been primarily responsible for benefits, leaving enforcement to Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”). The late-June memo concerning issuance of Notices to Appear (“NTAs”), the charging document beginning removal proceedings, by USCIS on a more widespread basis already gives the agency a greater enforcement role.
Combined with this policy change which is likely to result in many more denials, the two changes taken together turn USCIS into a far more aggressive enforcement agency. This turns the filing of even an extension petition for an existing immigration status into a potentially risky endeavor, which may land a foreign national in removal proceedings.