USCIS to expand adjudicators’ discretion to reject applications

16 Jul 18

UNITED STATES

U.S. Citizenship and Immigration Services (USCIS) has published new policy guidance that will provide agency adjudicators with more discretion to deny applications, petitions or requests without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

Key points:

  • The change will take effect Sept. 11 and will allow adjudicators to issue denials without providing an RFE or NOID in cases where “initial evidence” is missing or fails to establish eligibility.
  • This policy marks a break from the current policy under which adjudicators are instructed to issue RFEs unless there is “no possibility” that an application or petition’s deficiency can be cured by additional evidence.
  • The guidance will apply to all applications, petitions and requests that USCIS receives after the Sept. 11 effective date except for Deferred Action for Childhood Arrivals (DACA) adjudications. The administration has been ordered by federal courts in New York and California not to end the DACA program pending judicial review of the legality of the administration’s actions, and USCIS said it will not change how DACA requests are adjudicated.

Background: The current policy was established in a 2013 memorandum that directed adjudicators to request additional evidence unless there is no way that additional evidence could fix a defective application or petition. In practice, this guidance has limited adjudicators’ ability to deny applications without first issuing an RFE or NOID except in cases called “statutory denials,” e.g., cases where an applicant applies for a benefit that is no longer offered or does not have the family relationship necessary to support a family-based application.

Under the new guidance, adjudicators will continue issuing statutory denials without requesting additional evidence, but will also be granted leeway to reject applications that could be cured by additional evidence but where the applicant has not provided the initial evidence necessary to establish eligibility. USCIS said the new policy was designed to discourage “frivolous or substantially incomplete filings,” (“placeholder filings”) but is not intended to punish “innocent mistakes or misunderstandings of evidentiary requirements.”

BAL Analysis: Applicants and petitioners are encouraged to work closely with their BAL professional to ensure that they provide all required supporting evidence at the time of their submission. This policy guidance will apply to applications, petitions and requests received after Sept. 11. BAL will monitor the implementation of the new guidance and will provide clients with additional information as it becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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