As of September 11, 2018, an updated policy will make it easier for USCIS to deny a petition, application or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility for the benefit sought. The new guidance applies to all petitions, applications and requests (except for Deferred Action for Childhood Arrivals/DACA cases) received by USCIS after the effective date.
The policy memorandum (PM), dated July 13, 2018, rescinds the prior June 3, 2013 guidance implementing the “no possibility” policy and restores to the USCIS officer full discretion to deny petitions, applications and requests without first issuing an RFE or a NOID, when appropriate. According to USCIS, this policy aims to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage petitioners, applicants and requestors to collect and submit required evidence in the initial filing.
The prior 2013 PM provided that RFEs should be issued unless there was “no possibility” that additional evidence might cure the deficiency and lead to an approval. Thus, in practice, it limited denials without RFEs or NOIDs to requests where an adverse decision was mandatory under law (e.g. statutory denials such as when an applicant requests a benefit that no longer exists).
The updated policy provides guidance as follows:
USCIS will continue issuing statutory denials, when appropriate, without first issuing an RFE or NOID. This includes filings when the applicant, petitioner, or requestor has no legal basis for the benefit sought, or submits a request for a benefit under a program that has been terminated.
If all required initial evidence is not submitted with the application or petition, USCIS may exercise its discretion to deny the benefit request for failure to establish eligibility. Examples include:
- Waiver applications that require a showing of extreme hardship to a qualifying relative (U.S. citizen or permanent resident spouse or parent), but there is no evidence of a qualifying relative and the applicant is claiming extreme hardship to another relative (e.g. U.S. citizen child).
- Family-based immigrant petitions filed for relatives that do not fall under any of the family-based categories.
Denials Based on Lack of Sufficient Initial Evidence
USCIS, in its discretion, may deny the application or petition when the required initial evidence is not submitted with the original filing and the applicant or petitioner fails to establish eligibility for the benefit sought. Examples include:
- Waiver applications submitted with little or no supporting evidence.
- Cases when the regulations, the statute, or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no such submission. For example, a Form I-864, Affidavit of Support, if required, was not submitted with a Form I-485, Application to Register Permanent Residence or Adjust Status.
This PM updates Chapters 10.5(a) and 10.5(b) of the USCIS Adjudicator’s Field Manual and contains an “Additional Considerations” section, which is not new, and is nearly identical to the policy in the superseded 2013 PM. For instance, USCIS must still offer the applicant or petitioner an opportunity for rebuttal before making a decision if it has derogatory information and the applicant or petitioner is unaware that the information is being considered.
By restoring full discretion to USCIS officers to deny petitions or applications, when appropriate, without issuing a Request for Evidence or Notice of Intent to Deny first, the new guidance reflects USCIS’ expanded enforcement priorities, which are also revealed in its updated policy on unlawful presence and Notices to Appear in removal proceedings.
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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