New USCIS rules for requests for evidence and notices of intent to deny

Last Friday, the US Citizenship and Immigration Services issued a policy memorandum as a guidance for adjudicators on how they exercise discretion in denying an application, petition, or request for an immigration benefit without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

In what has been a practice by USCIS since 2013, the adjudicator had the discretion to issue an RFE or NOID when at the time of filing an application or petition, there is not enough evidence submitted to support it. So if you file an adjustment of status or greencard application and you did not include an Affidavit of Support from your petitioner/sponsor, what was expected then was that USCIS will send you an RFE asking you for that missing form.

Now with this guidance, the USCIS adjudicator has the full discretion to deny an application without first issuing an RFE or NOID when the applicant, petitioner or requestor has no legal basis for the benefit/request sought. If all the required initial evidence is not submitted with the application, USCIS, under this new policy, may in its discretion deny the application for failure to establish eligibility based on lack of required initial evidence.

Clearly, this new policy is an unwelcome burden on the part of the applicants and petitioners. It puts tremendous pressure to get the application or petition to be precisely correct at the time of filing. What if you miss something, or failed to check off a box, or failed to get your evidences in order? You will be denied right away without making a correction by way of RFE. It would be an additional cost if you refile, or worse, you could find yourself in removal proceedings.

Unless this policy gets challenged in court, this guideline takes effect on September 11, 2018. So for you out there who are applying or petitioning, make sure you get your submissions right the first time you file it.

This column is not a substitute for professional legal advice obtained from a US licensed immigration attorney. The information contained herein does not constitute a warranty or guarantee or legal advice regarding a reader’s specific immigration case. No attorney-client relationship is and shall be established with any reader.

For any questions, comments and observations, please contact Atty. Marco Tomakin at mtomakin@gmail.com