U.S. Citizenship and Immigration Services published a policy memorandum on July 13, 2018, that increases the discretion of USCIS adjudicators to deny applications or petitions for immigration benefits without first issuing a request for evidence, or RFE, or a notice of intent to deny, or NOID.
This policy memo replaces the 2013 policy memo in which USCIS is already permitted to deny any filing without issuing an RFE or NOID in cases where the “… applicant, petitioner, or requestor has no legal basis for the benefit or submits a request for a benefit or relief under a program that has been terminated” or what is called “statutory denials.” However, USCIS generally has been required to issue an RFE or NOID prior to denying a case where the case lacked sufficient initial evidence and provided the opportunity to “cure” any deficiency of an application or petition.
Now this new policy memo provides that, effective Sept. 11, 2018, USCIS may deny a case without first issuing an RFE or NOID “if initial evidence is not submitted or if the evidence in the record does not establish eligibility.” The memo provides the following examples where a denial without issuance of RFE or NOID would be appropriate:
- waiver applications submitted with little to no supporting evidence;
- cases in which the regulations, the statute, or form instructions require the submission of an official document or other evidence establishing eligibility at the time of filing and there is no submission.
Based on these examples, it is fair to assume that R-1 petitions can be denied for missing supporting documents, such as a priestly ordination certificate or missing compensation evidence, without being given the opportunity through RFE or NOID to cure this defect. Further, the policy memo states that the intent is not to “penalize filers for innocent mistakes or misunderstandings of evidentiary requirements,” but to “discourage frivolous or substantially incomplete filings.” It remains to be seen what kinds of adjudications will result out of this policy memo.
From now on, applicants, petitioners and requestors must first carefully outline the eligibility requirements based on the statutes and make sure that all basic eligibility requirements are accompanied by supporting evidence as required by law, or USCIS will have the discretion to deny the case outright per this new policy memorandum.
The policy also increases the discretion of officers to validate or corroborate evidence and information submitted in the applications and petitions “by consulting USCIS or other governmental files, systems, and databased, or by obtaining publicly available information that is readily accessible.” This means that USCIS adjudicators will research and examine external sources, aside from the evidence produced by foreign nationals and their employers, and those external sources can have a negative impact on adjudication of a filed application or petition. Therefore, it is more important now more than ever to include all information that is true and accurate on the petitions and applications filed with USCIS. It is also advisable that clients consult with attorneys before posting articles about the foreign national’s employment on church websites, bulletins or Facebook pages.