On July 13, 2018, U.S. Citizenship & Immigration Services (USCIS) released a very noteworthy internal Policy Memorandum entitled, “Issuance of Certain RFEs and NOIDs.” This Policy Memorandum rescinds a 2013 Policy Memorandum and now allows USCIS adjudicators to deny applications, petitions, and requests if a filing lacks sufficient initial evidence without first giving the filer a chance to supplement or correct the record. The prior 2013 Policy Memorandum required USCIS adjudicators to issue Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs) to allow the filer to supplement or correct the record. Under the new Policy Memorandum, USCIS adjudicators can summarily deny without ever issuing RFEs or NOIDs.
Consequences of the New Policy Memorandum:
This new Policy Memorandum has very important consequences for immigrants and non-immigrants, especially for persons proceeding without a U.S. immigration attorney. First, one simple mistake or missing document could lead to an immediate denial. The Policy Memorandum specifically states that, “[i]f all required initial evidence is not submitted with the benefit request, USCIS in its discretion may deny the benefit request . . . .” The Policy Memorandum also gives examples of filings that may be summarily denied without sending RFEs or NOIDs, including, “[c]ases where the regulations, the statute, or form instructions require the submission of an official document or other form or evidence establishing eligibility at the time of filing and there is no submission.” Therefore, something as simple as not including legal evidence of a change of name of a party in a family-based Green Card petition could lead to a petition denial. The fact that U.S. immigration law is very complex gives USCIS adjudicators numerous grounds to summarily deny a case.
Second, because USCIS government fees are generally non-refundable, a simple mistake or missing document could not only lead to a denial, but also to the loss of all submitted government fees. If applying for a Green Card for a spouse through adjustment of status, this would mean the loss of over $1,700 in government filing fees alone.
Third, this new policy can also create numerous other problems for foreign nationals. Take the scenario of a foreigner studying in the U.S. under an F-1 student visa who marries a U.S. Citizen prior to the expiration of the F-1 student status. The foreigner could legally apply for a Green Card and remain in the U.S. after the expiration of the F-1 student status if the Green Card application was filed with USCIS before the expiration of the F-1 student status. However, if the Green Card application is missing a required piece of evidence, the case could be summarily denied and the foreigner would be deemed unlawfully present in the U.S. The foreigner could be deported from the U.S. and/or banned from re-entering the U.S. for 3 or 10 years based upon being unlawfully present in the U.S. Unfortunately, the chances of being approved for any subsequent visa would likely also go down.
Conclusion:
Under the USCIS’ new Policy Memorandum, case filings have to be completed more thoroughly and professionally than ever to avoid a summary denial. Because U.S. immigration law is so complex and because so many forms, documents, and other evidence are required to be initially submitted to USCIS, competent legal representation from a U.S.-licensed immigration lawyer is more important than ever.
The new USCIS Policy Memorandum has garnered some media attention, including in an article by CNN which can be viewed by clicking here. For reference, the actual Policy Memorandum can be accessed here. The new Policy Memorandum goes into effect on September 11, 2018.
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