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New USCIS Memo Lowers the Bar for Case Denials

July 16, 2018

USCIS Officers will have full discretion to deny applications and petitions without first issuing a Request for Evidence or Notice of Intent to Deny

Update: Currently, the standard USCIS policy is that Officers who are not convinced a case is approvable should issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) to address deficiencies in the record unless there was “no possibility” that additional evidence could be submitted to fix the deficiency in the application or petition. This policy has been in place since 2013.  As of September 11, 2018, that is now going to change.

Under a new policy memo, Officers will be able to bypass the issuance of an RFE or NOID and deny cases on statutory grounds or where there is a lack of sufficient initial evidence. In the memo, USCIS cites two examples of cases that could be denied due to lack of sufficient initial evidence:

  • “Waiver applications submitted with little to no supporting evidence”
  • “Cases where the regulations, the statue, of 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.”

Analysis: This policy shift emphasizes that Officers have full discretion to deny applications outright – discretion officers have under the INA, but which was formerly constrained during the Obama administration. This reflects the Administration’s ongoing focus on enforcing immigration law and shifting USCIS from a service provider to another law enforcement agency.

Impact: This is the second memo released this month with the effect of increasing the agency’s enforcement abilities. Employers and applicants should expect to see an increase in outright denials for cases that would have otherwise received an additional opportunity to amend or emphasize elements of the record through an RFE.

EIG will continue to monitor and report on trends related to this development to ensure we remain proactive in always filing the strongest petitions possible.