No More Second Chances? New USCIS Policy Guidance for Requests for Evidence and Notices of Intent to Deny

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In the evening of July 13, 2018 (Friday), U.S. Citizenship and Immigration Services (USCIS) posted new policy guidance giving immigration adjudicators marching orders to deny an immigration application or petition without having to first issue a request for evidence (RFE) or notice of intent to deny (NOID) if the original submission lacks sufficient initial evidence to establish eligibility.

This new policy guidance, effective September 11, 2018, rescinds USCIS’s June 3, 2013 policy guidance and represents a drastic policy shift, potentially to the detriment of immigration petitioners, beneficiaries, and applicants. Under the previous 2013 policy guidance, USCIS adjudicators were expected to issue an RFE unless there was “no possibility” that the deficiency could be cured by submission of additional evidence. For cases where the record did not establish either eligibility or ineligibility, the 2013 policy guidance limited adjudicators’ discretion to deny without first providing the petitioner or applicant a chance to cure the perceived deficiency. The new policy guidance rescinds the 2013 “no possibility” policy and restores full discretion to USCIS adjudicators to deny applications and petitions without first issuing an RFE or a NOID.

USCIS states that the purpose of this new policy guidance is to discourage frivolous or substantially incomplete filings used as “placeholders,” and that it is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements. However, this new policy, combined with USCIS’ July 5 guidance (see our July 12 blog post) requiring the initiation of removal proceedings upon denial of an immigration benefit, could create even more uncertainty for petitioners and applicants. Only time will tell how aggressively USCIS adjudicators will apply this new policy guidance. In the meantime, petitioners and applicants need to work with their counsel and diligently collect and submit all necessary information and documentation pertaining to the requested immigration benefit so as to avoid an outright denial for failure to establish eligibility.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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