Fall 2018 Article
New Policy Memo in Effect Soon Significantly Changes US Visa Adjudication Process
That US immigration has become more complex and obtaining or renewing US visas has also become more difficult over the past couple of years is no secret.
In line with the current administration’s restrictive immigration measures, this past June, U.S. Citizenship and Immigration Services (USCIS) announced a relevant procedural change, which will become effective on September 11, 2018, allowing immigration officers to deny any application, petition or request (with the exception of DACA cases), without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).
Pursuant to the previous policy, adjudicators had very limited discretion and were authorized to deny cases without first issuing an RFE or a NOID only when there was no possibility that any additional documentation or information could correct the issue. The immediate consequence was that adjudicators would customarily issue an RFE or a NOID when the evidence submitted at the time of filing did not sufficiently establish eligibility. The beneficial effect of this procedure laid in the fact that incomplete petitions could be corrected without having to re-file new petitions, thus reducing costs and inefficiencies both for petitioners and for the USCIS.
The new policy introduces instead a “no second chance” approach, giving immigration officers full authority and discretion to deny applications outright based on a lack of sufficient initial evidence, or when the evidence in the record does not establish eligibility.
The declared rationale of this new policy is to discourage frivolous, meritless or skeletal filings simply used as “placeholders” to game the system, and encourage applicants, petitioners, and requestors to be more diligent in collecting and submitting the required evidence upfront. While it was explained that the new policy’s goal is not that of penalizing filers for innocent mistakes or misunderstandings of evidentiary requirements, the decision in each case is subjective to each adjudicator having full discretion to decide whether it was an “innocent mistake” or “lack of sufficient evidence.”
Deciding insufficiency is also subjective, because this may include applications or petitions with the right evidence, but not enough proper evidence from a particular adjudicator’s standpoint. In other words, the same visa petition could be approved or denied based on the immigration officer reviewing it. This is particularly true with respect to employment-based petitions, as they usually require an extensive amount of evidence about the employer and the employee to demonstrate that the requirements of the particular visa category sought are clearly met.
Practically speaking, nothing changes with respect to petitions or applications with no legal basis for the particular benefit: USCIS will continue issuing statutory denials without first issuing an RFE or NOID. However, starting September 11, 2018, USCIS, in its discretion, may also outright deny benefit requests for failure to establish eligibility based on lack of required initial evidence.
This, paired with a general increased scrutiny on visa petitions, which is also reflected in periodic policy memos addressing certain specific visa types, will certainly result in more cases being denied than in the past.
Following are a few measures to try to minimize the negative impact that the new policy may have on immigration benefits:
In general, always overdocument a petition or application to avoid denials based on insufficient evidence.
In case of employment-based green card petitions, the employer should renew the employee’s temporary work status until the green card application is approved to prevent the USCIS from initiating deportation proceedings against the employee.
Applications for extensions of temporary working status should be submitted well in advance of the status expiration, using premium processing.
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 As a general rule, the burden of proof is on an applicant, petitioner, or requestor to establish eligibility. RFEs are issued to request specific documents from a petitioner; on the other hand, NOIDs are issued to inform the petitioner that unless certain mistakes are corrected, the petitioner will be denied.