USCIS Officers and the Authority to Issue Denials

USCIS has issued a new policy memorandum which re-invokes a USCIS officer’s full discretion in issuing a denial before issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). How does this differ from previous policy, and what does it mean for you?

On July 13th, 2018, USCIS issued a Policy Memorandum which rescinded a June 3rd, 2013 Policy Memorandum titled “Requests for Evidence and Notices of Intent to Deny (2013 PM).” The 2013 PM limited the discretionary authority of a USCIS officer’s ability to issue denials on applications and petitions before first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). An RFE is a notice from the government allowing the Petitioner, Applicant, or Requestor to submit additional evidence to prove that they meet the evidentiary criteria for a specific visa category. A NOID is a notice from the government informing the Petitioner, Applicant, or Requestor that an application and/or petition is most likely going to be denied, while simultaneously providing them with the ability to submit a response contesting the decision directly to the USCIS. However, a denial is a notice from the government which denies an application and/or petition, without providing the time given by a NOID to respond and contest the denial. This means that if a Petitioner, Applicant, or Requestor receives a denial, the only course of action is to appeal the decision by filing a Motion to Reopen and/or Reconsider to the USCIS, and it may get referred to the DHS’ Administrative Appeals Office (AAO).

Beginning on September 11, 2018, USCIS officers will be granted the discretion to issue denials without first issuing an RFE or NOID when an application or petition fails to meet all the evidentiary criteria. This means that if an application or petition is missing one or more documents required, the USCIS officer adjudicating the application or petition has the authority to issue a denial, rather than being required to issue an RFE or NOID first. As described by USCIS,

“This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requesters to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstanding of evidentiary requirements.”

Previously, USCIS officers would issue denials when a Petitioner, Applicant, or Requestor did not meet statutory requirements, or if the immigration benefit being requested no longer exists. However, USCIS officers now have the authority to deny applications or petitions in the case of a filing that lacks initial evidence, rather than issuing an RFE or NOID first. USCIS provides two examples of such cases:

• 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 or evidence establishing eligibility at the time of filing and there is no submission. For example, family-based or employment-based categories where an Affidavit of Support (Form I-864), if required, was not submitted with the Application to Register Permanent Residence or Adjust Status (Form I-485).

Please note that the above examples do not represent all the cases in which a USCIS officer is able to issue a denial before first issuing an RFE or NOID.

It is important to note that this new policy guidance provides USCIS officers with more discretion to deny an application or petition based on a lack of evidence. As such, we urge our clients to ensure that all evidence is gathered well before an application or petition is submitted, and that applications or petitions for extensions of stay and change of status are submitted in advance of the visa expiration date. When considering the fact that USCIS officers also now have the ability to issue a Notice to Appear (NTA) when they have reason to believe that a denial would leave the immigrant without lawful status, it becomes clear that last-minute extensions and changes of status can leave an immigrant in a vulnerable position. Therefore, please be cognizant of your immigration status and refer to advice from our attorneys when looking to extend or change immigrant status.

As the USCIS gains more immigration enforcement capabilities, it is important to be diligent and careful when navigating immigration laws. As denials and NTAs are expected to increase following the issuance of recent policy memoranda, we ask that employers and immigrants rectify any immigration matters which can place workers and family members in peril of deportation proceedings.

Please contact our office at (212) 490-0900 to speak with one of our experienced attorneys.