USCIS Adjudicators Given the Go-Ahead to Deny Cases Without First Issuing a Request for Evidence

Effective September 11, 2018, adjudicators for U.S. Citizenship and Immigration Services (USCIS) will have the authority to deny any application or petition that is incomplete or lacks sufficient evidence without first issuing a request for evidence (RFE) or notice of intent to deny (NOID). The new guidelines are a reversal of the current policy, which requires that an RFE be issued unless there is “no possibility” that the deficiency can be remedied. Depending on the vigor with which it is enforced, this policy shift may eliminate the opportunity for petitioners and applicants to correct simple errors, like missing documents, or to beef-up documentation in support of an applicant’s eligibility, before the case is denied.

USCIS provided the following examples of cases that may be denied after September 11, 2018:

• A waiver application that is submitted without enough supporting evidence
• A filing submitted without the required forms, such as an application for adjustment of status that is filed without the requisite affidavit of support

Key Takeaway

According to USCIS, the new guidelines are not intended to penalize individuals for “innocent mistakes or misunderstandings” of the requirements but rather to discourage people from submitting “frivolous or substantially incomplete filings,” which it calls “placeholder” applications. The policy language suggests that adjudicators have some discretion to determine when to deny an application or issue an RFE, but it is not yet clear how often they will exercise that discretion or whether they will err on the side of denials. 

The potential for increased denials by USCIS is especially concerning given the recent implementation of another USCIS policy that requires adjudicators to issue notices to appear (NTAs), thus commencing removal proceedings, for individuals they deem unlawfully present after their immigration applications have been denied. It is not yet known how either policy will play out in practice, though it seems likely that the two policies will work together to compound the negative consequences of an application denial by placing applicants at a greater risk of removal.

Given the increased consequences of a denial, every petition or application sent to USCIS should be checked and double checked to ensure accuracy, eligibility, and that sufficient documentation has been provided to support the immigration benefit requested. Employers may want to verify that all of their sponsored positions and sponsored employees meet the requirements for their visa categories. They may also want to consider what level of involvement they will have if one of their sponsored employees is placed in removal proceedings.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these changes and will post updates on the Immigration blog as additional information becomes available.