USCIS’s new “denial memo” is now in effect

STARTING on September 11, 2018, a new USCIS Policy Memorandum (PM) became effective, instructing officers on how to adjudicate (process and make decisions on) petitions, applications, extensions, etc., when the initial filing was incomplete or insufficient.  The PM creates a dangerous minefield for people, because even if they make an innocent mistake or accidentally forget to include certain documents, the case could now be immediately denied and they could be placed in removal/deportation proceedings.

In the past, if a person filed a petition, application or other request, and an officer believed additional documentation or information was required, the person would typically be served with a request for evidence (RFE), giving that person approximately 87 days to cure the deficiency, by providing the documents or further information. The new PM allows officers to skip or dispense with an RFE and deny the case outright.

While the PM does state it is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements, it nevertheless “restores to the adjudicators (officers) full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID (notice of intent to deny).” The policy intends to discourage “frivolous or substantially incomplete filings used as ‘placeholder’ filings.” In other words, USCIS believes that many filings have no merit and are being filed merely to buy time or obtain benefits to which the person is not entitled.

USCIS lists a number of situations where it can deny filings outright:

Statutory denials: This is where the person has “no legal basis for the benefit/request sought, or submits a request for a benefit or relief under a program that has been terminated.” This might include a waiver application where the person does not have a qualifying relative on which to base the waiver (such as a spouse or parent who is a US citizen or lawful permanent resident). Therefore, if a person committed fraud, and submitted a fraud waiver without having a qualifying relative, there is no statutory basis for the filing of a waiver application.

Denials based on lack of sufficient initial evidence: This is a scary and critical change in policy. If all the required initial evidence is not submitted at the time of filing, USCIS can deny the benefit outright without issuing an RFE. This could include a marital petition, but the couple accidentally forgot to include a marriage contract; a family petition and they forgot the birth certificate; or an adjustment of status application (Form I – 485), and they forgot to include the affidavit of support. An outright denial could also be issued when the officer believes there was insufficient supporting evidence. This could include a hardship waiver, but the officer believed not enough evidence of extreme hardship was submitted. Rather than issuing an RFE asking for more evidence, they can deny outright. Similarly, if a person files a request for an extension of status for a visitor’s visa, and the officer believes they did not provide enough evidence to justify the extension, the extension request can be denied outright.

And the consequences could be severe! With a denial, a person could be considered out of status, and USCIS could issue a notice to appear (NTA), placing that person in deportation. Given the backlogs in the immigration courts, it could take months or years for the person to get a hearing date. Or, the person might have to file a motion to reopen or reconsider, costing additional time and expense for something as insignificant as not including a marriage contract or birth certificate on the initial filing.

While the USCIS was supposed to be the “benefits” branch of the Department of Homeland Security, tasked with the job of looking for ways to approve cases, it now appears just the opposite is true: USCIS is looking for ways to deny cases. That’s why it is all the more important that you consider having an attorney assist you with your immigration case, as the stakes are so high if any little mistake or oversight is made, it could result in your going out of status, or even being placed in deportation.

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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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