By attorney: Michele Strickland
U.S. Citizenship and Immigration Services (USCIS) posted a policy memorandum, on Friday July 13, 2018 announcing its new policy to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when the required initial evidence was not submitted or the evidence of record fails to establish eligibility.
This policy is effective September 11, 2018, and applies to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received after that date.
“For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits,” said USCIS Director L. Francis Cissna. “Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”
Since 2013 USCIS issued RFEs and NOIDs when the evidence submitted at the time of filing did not establish eligibility. The old policy limited denials without RFEs or NOIDs to statutory denials by providing that RFEs should be issued unless there was “no possibility” of approval. USCIS stated that this “no possibility” policy limited the ability of an adjudicator to use his or her discretion.
According to USCIS, the policy announced on Friday restores authority to the adjudicator to use full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate. This policy is intended to discourage frivolous or incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence.
If all 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 submission. 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).
This means that all applications submitted to USCIS after September 11, 2018 must be complete at time of submission. Failure to include all required documentation and evidence will likely result in a denial it is unclear at this time what the appeal process would be like as well. It is extremely important that you seek the advice of an experienced immigration lawyer before submitting an application to USCIS. Contact our Houston office at (713) 589-2085 or our New Jersey office at (201) 210-8240 to schedule a consultation with any one of our experienced attorneys.