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New Policy Allows USCIS to Deny Immigration Benefits with No Notice or Opportunity to Correct Mistakes

On July 13, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a new Policy Memorandum that allows USCIS officers to deny applications for immigration benefits without allowing applicants to provide additional information. This policy took effect on September 11, 2018, and it applies to all applications, petitions or requests for immigration benefits that USCIS receives after that date.

What did the previous policy require?
For the last several years, the policy required USCIS officers to send applicants a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) if the applications were missing documents or evidence in support of the immigration benefit requested. The old policy allowed USCIS officers to deny an application without first issuing a NOID or RFE only if the applicant was clearly not eligible for the benefit requested, no matter what evidence they submitted.

For instance, if a U.S. citizen filed a family-based immigration petition for a niece or nephew, the old policy allowed USCIS to deny the petition without issuing a RFE or NOID, because U.S. immigration law simply does not provide a family-based category for nieces and nephews. But if an applicant filed a green card application based on marriage to a U.S. citizen, but did not include an I-864 Affidavit of Support for instance, the old policy directed USCIS to issue a RFE, to allow the spouses time to submit the missing document and cure the defect.

What has changed under the new RFE and NOID policy?
Under the new policy, USCIS may, but is no longer required to, allow applicants to fix the mistakes in their applications. In the examples above, under the new policy USCIS does not have to issue the RFE or give the spouses an opportunity to provide the missing document(s). Instead, the new policy allows USCIS to deny the petition altogether, with no advance notice or opportunity to correct the issue.

Similarly, if an employer filed an I-129 petition seeking H-1B status for an employee but the petition does not include evidence of the employee’s qualifications, or any other item that is considered initial evidence, under the new policy that took effect September 11, 2018, USCIS may flat out deny that petition, without giving the employer an opportunity to submit the missing information.

Can USCIS still issue RFEs and NOIDs?
Yes, but the decision to do so is left entirely up to the officer’s discretion and it will be made on a case-by-case basis. Unlike the old policy that provided clear, predictable and easy-to-follow guidance, the new policy will lead to arbitrary and inconsistent decisions from one USCIS office to another, and even from one USCIS officer to another within the same office.

Can applicants re-submit their application after they receive a denial under the new policy?
Generally, yes. When USCIS denies a petition or application because of missing evidence, the applicant or petitioner may resubmit the file all over again, this time including the document(s) that were missing the first time. However, the applicant or petitioner will lose the government filing fees from the initial filing, and will be required to pay the government fees again when they resubmit the application.

Can I be deported if my application is denied?
That is possible, depending on your status and the type of application you file. USCIS has issued a separate policy stating when a denial of an immigration application can trigger deportation proceedings. Under that policy, USCIS may issue a Notice to Appear and initiate removal/deportation proceedings after they deny an application for certain immigration benefits if the denial of the application leaves you with no lawful status to be in the U.S.

How can I minimize the risk of a denial under the new policy?
If you seek legal advice, make sure that you consult with a reputable immigration attorney before you agree to file any documents with the U.S. government. Avoid immigration scams by Notarios and Tax Preparers! Notaries public, notarios and tax preparers cannot represent you in the immigration process and are generally not authorized to practice law or provide legal advice.

We urge applicants and petitioners for immigration benefits to closely review all instructions, USCIS checklists, statutes and regulations before sending their applications to USCIS, to ensure they are familiar with what documents and fees must be included with the forms.

In addition, applicants should organize their files according to standard USCIS requirements, and should always include a cover letter listing all documents they are providing, in the order in which they appear in the package. This will assist USCIS in locating all documents more easily, and minimize the risk that the officer will inadvertently miss a document that was otherwise included.

Applicants should always make a complete copy of the submission package in its entirety, assembled exactly the same as the documents they send to USCIS, and keep it in a secure place, in the event there is a dispute as to what documents were included in the filing in the first place.

If you have any questions regarding the new USCIS policy or any other immigration-related matters, please do not hesitate to contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or (608) 252-9291.

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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