Starting on September 11, 2018, USCIS adjudicators will have full discretion to deny all types of applications, petitions, and requests (with an exception for DACA due to a preliminary injunction) without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). In the policy memo announcement, USCIS stated that the change:
“will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”
The now-rescinded policy memo from 2013 previously limited immediate denials, encouraging RFEs or NOIDs unless there was “no possibility” of an approval being issued. The new policy memo “restores to the adjudicator full discretion” and allows for “statutory denials… when the applicant, petitioner, or requestor has no legal basis for the benefit/request sought.”
While many of the media reports following this announcement have used alarming language surrounding the potential denials, it is important to note that USCIS must still follow existing regulations and can only deny a request if required evidence is not provided to establish an applicant’s eligibility.
What does this mean for employers and beneficiaries?
While we can’t predict how USCIS officers will interpret this memo, we believe it will primarily target the firms submitting incomplete petitions to purposely trigger an RFE. When our office submits a petition, we gather documentation that will provide a complete picture of a case for the adjudicating officer. For example, an H-1B employee may be working for an employer, through a middle vendor, for an end client. It is critical, now more than ever, to “connect the dots” for each of the three parties involved and show the adjudicating officer how each party is connected.
Three Tips for Avoiding Denials
- File early.
As we navigate through the new adjudication trends, you should file early to allow enough time for alternative actions in case of a denial or RFE. In some cases, it may make sense to file using Premium Processing for a faster response. An earlier answer may provide additional flexibility for the employer and employee.
- Tell a complete story.
Occasionally it may be time-consuming to obtain end client letters or other critical pieces of evidence for your filing. When your paralegal or attorney requests these documents, please provide as much information as possible: they are requesting items that will strengthen your chances of an approval. As mentioned above, there must be proof of the chain of employment at the time of the filing. It is our job to transform a group of complex documents into a meaningful case that meets all legal requirements.
- Be adaptable.
We may have to modify how we approach cases as we study adjudication trends and see the impact of new memos and regulations. The new policy memo may dictate a different minimum threshold of evidence than in the past, but our experienced paralegals and attorneys will communicate the shifts as we encounter them. We ask that you attempt a similar level of flexibility during the adjustment period, so we can continue to offer you a high level of service.
We will always strive to get your case approved, so we will not submit a “frivolous filing” or “skeletal application” like the memo purports to target. Despite some claims that individuals will be deported if a document is left out of a petition, there are legal steps that must be followed by the U.S. government. While we will save a more complete discussion for another article, rest assured that deportation proceedings are not initiated until a series of preceding items occur. Although at times an adjudicating officer may miss a piece of submitted evidence, there are different appeals processes in place for USCIS errors. Feel free to contact us if you have any concerns about your specific case.
At Challa Law Group we consider our team to be part of your team and we will guide you through the complexities of new (and existing) immigration regulations. If you have any questions about the new memo or any of the new regulations and policies being implemented, please email us at firstname.lastname@example.org.