Policy Change Provides USCIS Adjudicators with Discretion to Deny Petitions and Applications Without

The U.S. Citizenship and Immigration Services (USCIS) recently published a Policy Memorandum amending its standard for issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) for petitions and applications. The new policy, which went into effect on September 11, 2018, restores full discretion to USCIS adjudicators to deny a petition or application without issuing an RFE or NOID, if the evidence submitted at the time of filing does not sufficiently establish eligibility, or if the required initial evidence for the immigration benefit has not been submitted.

Previous USCIS policy limited USCIS adjudicators’ discretion to deny a petition or application without prior issuance of an RFE or NOID to “no possibility” or “statutory ineligibility” cases only. Statutory denials are appropriate where the evidence on record establishes that the petitioner or applicant has no legal basis to apply for the immigration benefit under statute, such as filing a family-based petition for a family member who is not under an authorized visa preference category (e.g. lawful permanent resident (LPR) filing an immigrant petition for a married son or daughter), or where the immigration program has ended or has been terminated. If the eligibility for the immigration benefit could be cured by additional evidence or information, USCIS adjudicators were instructed to issue an RFE or NOID.

Under the new policy, USCIS adjudicators may deny a petition or application without affording the petitioner or applicant the opportunity to respond to or rebut any deficiency findings, regardless if the deficiency could be cured or eligibility could be established by submission of additional evidence. The stated purpose of the new USCIS policy is to “restore full discretion to USCIS adjudicators to to deny applications, petitions, requests without first issuing an RFE or NOID.” The stated intent of the policy change is to discourage what the USCIS believes are frivolous filings or “placeholder” filings, i.e. filing incomplete petitions or applications in an attempt to maintain status and/or get an interim immigration benefit.

What petitions or applications are affected?

Most petitions and applications that convey immigration benefits, including employer-sponsored petitions such as H-1B, L-1, O-1 and I-140 and adjustment of status, are subject to the new policy. Please note that the new policy will not apply to petitions and applications filed before the effective date of September 11, 2018, or renewal requests filed under the Deferred Action for Childhood Arrivals (DACA) program.

How will the new RFE / NOID policy be implemented?

In the initial case review, USCIS adjudicators will continue to issue statutory denials when appropriate. USCIS adjudicators may also, in his or her discretion, deny cases without issuance of an RFE or NOID where the evidence of eligibility is insufficient or where the petition or application lacks initial evidence required under statute, regulation or USCIS policy, such as filing an H-1B petition without evidence of the beneficiary’s bachelor’s degree or its equivalent, or filing an I-140 petition without evidence that the employee meets the education or experience requirements listed on the certified PERM application.

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