Through a Policy Memorandum that took effect today, September 11th, 2018, USCIS stated its revision of how and when it will issue a Request for Evidence (“RFE”) or a Notice of Intent to Deny (“NOID”) on any immigration benefit filed with USCIS. Vacating years of practice, USCIS now has given adjudicators complete discretion to deny an application/petition/filing, without first issuing an RFE or NOID, if initial evidence is not submitted or the submitted evidence does not establish eligibility.
This new policy has serious negative impact on anyone who files for any benefit through USCIS. First, consider that neither USCIS regulations nor instructions are entirely clear on what constitutes “initial evidence” in all matters, leaving a lot of area for adjudicators, in their discretion, to start denying filings at will. Second, by applying this new policy in connection with USCIS’ new memo on issuing Notices to Appear (“NTA”), USCIS has complete discretion to place individuals in removal proceedings upon denial of a pending application/petition/filing, simply because an evidentiary item was overlooked by the adjudicator, or disregarded, the consequences could be staggering for our employment-based immigration system. The NTA memo is on hold pending USCIS internal guidance, but is expected to be implemented any day.
The U.S. immigration system demands predictability and stability, yet through an ongoing series of new Policy Memoranda, USCIS continues to overhaul the entire nature of our U.S. immigration system. Incredibly harsh consequences are now being imposed on businesses and individuals who are trying, in good faith, to comply with our complex and ever-changing immigration laws. This is a seaside shift away from USCIS’ service and customer-oriented mission of providing benefits to a variety of eligible immigrants.
If you have have questions on how USCIS’ new policy memo(s) impact your immigration case, please contact SPS Immigration.