Deny First, Ask Questions Later: The U.S. Citizenship & Immigration Services Latest Tool to Hurt
The new Policy Memorandum explains that USCIS adjudicators now have the right to deny any application, petition, or request without issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when an application is lacking initial evidence or the evidence does not provide eligibility. Statutory denials will be handed out when an applicant has no legal basis for approval or if they request benefits for a program that is no longer available. This guidance will become effective September 11, 2018 and will be used to guide determinations by all of the U.S. Citizenship and Immigration Services (USCIS) staff.
The new Policy Memorandum resends the previous 2013 PM’s “no possibility” policy and gives the adjudicator full discretion to deny any application, petition, or request without filing an RFE or a NOID. This change seeks to place more responsibility on the applicant to submit sufficient evidence that pertains to their case and move away from creating placeholder files with incomplete applications.
A few examples of cases that would be appropriately denied without issuance of an RFE or a NOID are:
An applicant that is showing extreme hardship to a relative but there is no evidence to who the relative is;
A family-based visa petition that is filed under categories that are not recognized by statute;
Waiver applications that lack proper supporting evidence;
An application that requires a submission of an official document to prove eligibility, is missing that official document
Officers that are reviewing applications should continue to reflect on the operating procedures to assure that all cases are handled correctly. Cases that are in litigation must be addressed based on the protocols that cover solely litigation policies.
When an RFE creates an outlet to new lines of inquiry, an additional RFE may be issued for follow up with a request of the additional evidence that USCIS wishes to receive. The initial request should also include why the evidence that was already submitted was not sufficient, what the requirements are, what is missing from the evidence, and examples of sufficient evidence that the applicant can include. This will diminish the need for multiple REF’s. Applicants will be responsible for submitting all required evidence once they receive an RFE. Failing to do so will create a request for a decision on the record and lead to grounds of denying the initial application request.
The new guidance also give officers the ability to validate assertions or corroborate evidence by using USCIS and governmental systems as an outlet. The information or evidence that is lacking from an application and can be readily found in USCIS databases or records can be used instead of issuing an RFE or NOID. Officers may also use information that is publicly available as evidence that must be placed into the the Record of Proceeding according to the National Background, Identity, and Security Check Operating Procedures Handbook (NaBISCOP) using the standard operating procedures.
If you have any questions regarding the new Policy Memorandum, please contact Attorney Nicholas J. Mireles at NicholasMireleslegal@gmail.com.