What Is It?

On July 13, 2018, USCIS issued new guidance regarding adjudicator discretion to deny a request for an immigration benefit without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). 

The new policy makes it easier for USCIS to deny an application or petition without first issuing an RFE or NOID. For example, rather than giving the person the opportunity to fix what might be a simple filing error, adjudicators can deny a benefit if any of the required initial evidence is missing from the filing.

Prior USCIS policy limited adjudicators’ ability to deny a case without first giving the applicant or petitioner an opportunity to respond and to only deny cases outright when there was “no possibility” that additional evidence might cure the deficiency.

The July 13, 2018, policy supersedes the 2013 guidance and takes effect on September 11, 2018.

Who Is Impacted?

All applicants and petitioners who file immigration benefit applications with USCIS, including applications for naturalization, family-based immigrant petitions, temporary work visa petitions, immigrant petitions filed under the Violence Against Women Act (VAWA), and permanent residency (“green card”) applications filed on or after September 11, 2018.

Immigration law is already unforgiving but this will take it to a new level. Applicants and petitioners could now face harsh consequences in the form of a denial of their immigration benefit application if they inadvertently make an innocent mistake on the application or misunderstand an evidentiary requirement.

Petitioners and applicants will be forced to re-submit their benefits requests, which means having to repay immigration fees and for some means losing employment, travel opportunities, and/or their place in the heavily backlogged visa queue.

Chilling Effect

When you couple this new policy with a June 28, 2018 memo mandating USCIS to issue Notices to Appear (NTA) in far more immigration cases than ever before, even more individuals could be shuttled into immigration court removal proceedings. 

Read together, USCIS could deny an immigration benefit application without first issuing an RFE or NOID, and if the individual is no longer maintaining status at the time of denial, USCIS may issue an NTA to place the individual in removal proceedings. 

These policies will have devastating effects on all types of immigration benefits applicants, including high-skilled workers, families, students, and survivors of domestic violence and other crimes. 

By making the legal immigration process more burdensome and uncertain, the new policy will harm U.S. citizens seeking to sponsor their relatives through the family-based system, individuals seeking asylum and humanitarian protection in the United States, permanent residents applying for naturalization, and U.S. companies seeking to hire and retain top talent from across the globe.