USCIS Grants Adjudicators Full Discretion to Deny Filings Without Issuing a Request for Evidence

Today, Friday, June 13, 2018 U.S. Citizenship and Immigration Services (USCIS) posted a policy memorandum (PM) that provides USCIS adjudicators full 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.

This updated guidance will not become effective September 11, 2018 and will not be applied retroactively. However, the PM applies to all applications, petitions, and requests, (except for Deferred Action for Childhood Arrivals (DACA) adjudications), received after that date. Previous guidance, rescinded by the new PM, limited denials without RFEs or NOIDs, requiring adjudicators to issue RFEs prior to a denial unless there was “no possibility” of approval.

Although the PM cites “frivolous or meritless claims that slow down processing for everyone” as the reason for the policy change, and notes that it is “not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements”, it is hard not to view this as anything other than yet another policy aimed at stifling legal immigration.

Under the new policy, USCIS in its discretion, may deny a filing for failure to establish eligibility based on lack of required initial evidence. As examples of cases that could result in denial without an RFE, the PM cites waiver applications submitted with  little to no supporting evidence and cases where the regulations, the statute, or form instructions require the submission of documentation or evidence establishing eligibility at the time of filing and such documentation is not submitted.l. The PM make clear, however, that its application is not limited to these two specific scenarios. In these instances, instead of issuing an RFE requesting the missing documentation, USCIS can issue a denial of the filing.

The PM further states that in some cases RFEs will still be warranted, and while officers are encouraged to include all of the additional evidence they anticipate needing in order to adjudicate a case,  the PM acknowledges that multiple RFEs may be required some cases. Finally, the PM indicates that USCIS officers have discretion to validate or corroborate evidence and information included in a filing by “consulting USCIS or other governmental files, systems, and databases.”

As a result of the new PM and the heightened scrutiny surrounding all adjudications, petitioners and applicants are encouraged to ensure that all required documentation and information is submitted at the time of the initial filing.

D&S will continue to monitor the situation and provide updates as they become available.

UPDATE: USCIS has postponed implementation of this PM. The Agency did not provide a timeline for when the NTA Issuance policy will ultimately become effective and D&S will continue to monitor this situation closely.