Last Friday, US Citizenship & Immigration Services (USCIS) published a policy memorandum that provides updated guidance to USCIS adjudicators regarding their “discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility,” a move that makes it easier for USCIS officers to deny applications and petitions.
In explaining the reason for the guidance, which is effective September 11, 2018, USCIS Director L. Francis Cissna says: “For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits.” He adds: “Doing so 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 updated guidance applies to all applications, petitions, and requests, with the exception of Deferred Action for Childhood Arrivals (DACA) adjudications, received after September 11, 2018, USCIS states. Because of preliminary injunctions by courts in New York and California, this new policy memorandum does not change the RFE and NOID policies and practices that apply to DACA adjudications.
USCIS says that officers will continue to issue statutory denials when appropriate without first issuing an RFE or NOID if all required initial evidence is not submitted or “when the applicant, petitioner, or requestor 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.”
While the memo may seem alarming, there are a few things to note. First, it does not affect current cases but only goes into effect on September 11, 2018. Therefore, its impact will not be fully understood until then. The memo essentially allows USCIS to revert to the practices in place before 2013 where officers had a broader discretion to deny cases without issuing an RFE. The stated goal is to minimize the filing of frivolous and/or clearly ineligible cases that clog up the system and backlog the processing times by denying them without an RFE, freeing up USCIS to adjudicate the cases that are well put together and arguably qualify for the visa being applied for. Notably before 2013, we did not notice a dramatic number of denials for cases we filed with proper supporting evidence.
The current memo states that this “policy is intended to discourage frivolous or substantially incomplete filings used as ‘placeholder’ filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence.” And further it notes: “It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.”
Given the higher level of scrutiny by USCIS applied to all applications in recent years we don’t know if the extra discretion authorized by the memo will be used in more draconian ways to deny cases without issuing an RFE when an officer believes the beneficiary does not qualify. Certainly every adjudication involves an exercise of officer discretion from determining how important a piece of evidence is to a case to whether that evidence fits into the evidentiary criteria. And that discretion has been less liberally applied in recent years. This memo seems to continue down the path of allowing for conservative case reviews. Unfortunately, we won’t know how exactly officers will implement this memo until it goes into effect and a few months after.
An additional concern raised by this memo is how it will interact with the updated guidance USCIS issued early July which allows USCIS to put foreign nationals into proceedings in a few situations including when “upon the denial of an application or petition, an applicant is unlawfully present in the United States.” Along with the broad authority to deny (which could result in an applicant being unlawfully present—having stayed past the expiration of the I-94) these two memos make for significant concerns. Attorney Cyrus Mehta also points out the potential danger of how USCIS may use this memo in combination with the previously issued memo on when individuals can be put in removal proceedings: “USCIS has deliberately made it more difficult to win H-1Bs, so under new cynical NTA policy if an H-1B extension is arbitrarily denied after expiration of prior H-1B status, the skilled worker could be placed in deportation proceedings even while challenging the denial.”
Going forward foreign nationals and their employers should consider the following:
1. Applicants should provide all the materials requested by their attorneys to prepare their filings. Experienced attorneys prepare very carefully documented applications which attempt to address all the requirements of the particular visa.
2. H-1B change-of-employer applicants may not want to use the portability provisions and instead should continue working with their current sponsor until the new employer petition is approved. This way, the employee isn’t taking the risk of quitting their H-1B job without knowing that the new petition is already approved. This at least minimizes the risk that they could fall out of status and be issued a Notice to Appear (NTA) if the case were to be denied.
3. Petitioners should consider premium processing the change-of-employer petitions to ensure the foreign national can start working as soon as possible.
In addition to providing officers the discretion to deny a case with issuing a request for evidence, the new memo contains another cause for concern. The memo states:
Apart from RFEs, officers have the discretion to validate assertions or corroborate evidence and information by consulting USCIS or other governmental files, systems, and databases, or by obtaining publicly available information that is readily accessible. See 8 USC 1357(b). For example, an officer may, in the exercise of discretion, verify information relating to a petitioner’s corporate structure by consulting a publicly available state business website. As another example, an officer may attempt to corroborate evidence relating to an individual’s history of nonimmigrant stays in the United States by searching a nonpublic, U.S. government database.
This basically allows officers to consult the Internet and other sources (which they have been doing unofficially anyway) to find information which they can use as a basis of a denial. This is very concerning because the information on the Internet is not always reliable. To that end our last two suggestions are:
4. Foreign nationals should ensure their online profile including Facebook and LinkedIn match their resume and career history as stated in the petition.
5. Petitioning companies should ensure all company filings are correct and match details provided to attorneys for the filings.
Overall the new memo represents another bureaucratic hurdle to legal immigration. Todd Schulte, president of FWD.us, an immigration reform group launched by tech leaders, tells CNN. "It is the newest in a series of moves by the administration to substantially restrict legal immigration by making it more difficult, expensive and bureaucratic for the applicants while allowing the government to easily deny claims for people who should be coming here—or who are here and stuck in a broken visa system—and strengthening our country."
That said, we must monitor how the memo plays out to see how much effect it will have, and we will update the blog with any important developments.