“While the burden of proof remains on the applicant, petitioner, or requestor to establish eligibility for an immigration benefit, USCIS’ previous policy was more forgiving.”
SHORTLY after issuing a policy memorandum that significantly expands its authority to issue Notices to Appear (NTAs) referring individuals to immigration court for deportation proceedings, U.S. Citizenship and Immigration Services (USCIS) has issued a new policy memorandum giving USCIS adjudicators greater discretion to deny applications for immigration benefits. The policy memorandum issued on July 13, 2018 provides USCIS adjudicating officers with “full discretion to deny applications, petitions, and requests” without first issuing requests for additional information or providing the applicant with notice of an intended denial.
USCIS is the federal agency that is responsible for reviewing and adjudicating immigration applications and petitions such as applications for green cards, citizenship, asylum, as well as employment-based etitions such as H-1B and EB-5 investor petitions. Under its new policy, USCIS may issue denials of applications in certain situations without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). This new policy is in stark contrast to USCIS’ prior policy, which was to issue an RFE or a NOID unless there was “no possibility” that a deficiency could be cured by submission of additional evidence.
While the burden of proof remains on the applicant, petitioner, or requestor to establish eligibility for an immigration benefit, USCIS’ previous policy was more forgiving. In essence, under prior policy, the USCIS would only deny an application or petition without issuing a RFE or NOID if the application warranted a statutory denial, such as a denial based on a nonexistent immigration benefit. Now, however, USCIS can issue denials based on a lack of “sufficient initial evidence” without giving applicants or petitioners the opportunity to correct their mistakes.
The policy memorandum gives USCIS officers the discretion to deny the benefit request if all required initial evidence is not submitted with the benefit request. An example of an application that may be automatically denied is a request for a Waiver of Inadmissibility (I-601) that does not include supporting documentation of extreme hardship. Previously, applicants would always be given the opportunity to supplement their applications at a later time. Another potential example of an automatic denial includes applicants for permanent resident status (green card) through adjustments of status (I-485) who do not include a sufficient Affidavit of Support (I-864) from their petitioner and/or co-sponsor. It is also possible that the USCIS may deny the application instead of issuing a RFE in situations as easily correctable as when the petitioner and/or co-sponsor fails to submit evidence that they earn a sufficient income.
This new USCIS policy goes into effect on September 11, 2018. And while the new policy eliminates the requirement to issue an RFE and give petitioners or applicants the opportunity to correct a mistake, it also expands USCIS’ authority to issue follow-up RFEs when submitted evidence “opens up new lines of inquiry.” It also provides USCIS officers with the discretion to validate assertions or corroborate evidence by consulting USCIS or other governmental files, systems, and databases or other publicly available information that is readily accessible.
It is essential that applications and petitions are as detailed and thorough as possible and contain all required evidence at the time of filing. Applicants should no longer automatically expect USCIS to inform them if required information or documentation is missing. If any required evidence is omitted, even inadvertently, the application may be denied without the applicant being afforded an opportunity to correct the deficiency or provide further information. In addition to the loss of filing fees, a denial could have serious consequences on an immigration case and could lead to barriers for future immigration benefits.
If you are considering filing an application for an immigration benefit, it is more important than ever to make sure you have a highly competent immigration attorney who will completely and accurately prepare the application or petition. This is true even if you believe you have an “easy” or “routine” immigration case. The stakes are higher than ever now in light of the recent guidance directing USCIS officers to refer individuals to immigration court following the denial of an application or petition. As such, all potential applicants should seek guidance and assistance from a knowledgeable and experienced immigration attorney before applying for an immigration benefit.
Reeves Miller Zhang & Diza is one of the oldest, largest and most experienced immigration firms in the United States with offices in Pasadena, San Francisco, Las Vegas, Manila and China.
Telephone: (800) 795-8009
The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the personalized representation that is essential to every case.