By Attorney Nadia Khalid
On September 11, 2018, United States Citizenship and Immigration Services (USCIS) introduced a policy that will allow visa adjudicators to deny visa applications or petitions without first issuing a request for additional evidence (“RFE”) or delivering a “notice of intent to deny” (“NOID”). The idea behind this policy is to deter and eliminate applications made under “frivolous or meritless claims” that ultimately slow down the application processing system for everyone.
But, while USCIS might claim this new policy for the sake of efficiency, it is important to consider what RFEs and NOIDs offer to visa applicants. Typically, when a visa applicant receives an RFE or a NOID, the visa applicant has the opportunity to offer more evidence, if needed; to correct a misunderstanding with more concise evidence, if needed; or, in the case of a NOID, to argue that the interpretation of the law or application of certain standards was incorrect and that the evidence presented was not sufficiently considered the first time.
Removing the issuing of RFEs or NOIDs is dangerous on many fronts. First, it assumes that the interpretation of law by USCIS is infallible. Second, it assumes that any lack of sufficient evidence or incorrect filing is equivalent to purposeful negligence that is frivolous or meritless. Thirdly, it increases the overall time invested and money spent in any visa application process; if, for instance, an application is denied on what would have been a fixable reason – the visa applicant now has to re-file, pay another filing fee, and spend more time pursuing this visa option. Consequently, the visa applicant also loses time. If the visa denial is issued after a visa applicant’s lawful status ends, what options are they left with?
Obviously, the immigration legal community is hoping that this new policy is applied with extreme discretion and only to those claims that are so ostensibly frivolous that they are the equivalent of a form submitted without signatures or evidence. However, the larger fear is that this policy will be applied discriminatorily and haphazardly and result in procedural chaos, to say the least.
Now, more than ever, we urge you to ensure that whatever forms you are filing or have filed, be prepared with or, at the very least, reviewed by an immigration attorney. It is incumbent you protect yourself by filing any future visa applications with a reasonable standard of sufficient evidence the first time. At the end of the day, while this may cause more headaches, the last thing we want you to lose is time.
If you would like to learn more about this policy or would like advice on a currently pending visa application, feel free to contact our office at 713-589-20185 or email us at [email protected] to set up a consultation.