Before You File That Immigration Benefit Form . . .

On June 13, 2018, the United States Citizenship and Immigration Services issued a policy memorandum that gives immigration benefit adjudicators the discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if the initial evidence is not submitted or if the evidence in the record does not establish eligibility.

This new policy overturns the June 3, 2013 PM guidelines that required immigration benefit adjudicators to issue RFEs and NOIDs when evidence submitted at the time of filing does not establish eligibility for the immigration benefit sought, and the deficiency could be cured by submission of additional evidence. In essence, this policy gives the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate.

The USCIS defends this policy by arguing that it is intended to discourage frivolous or substantially incomplete fillings used as “placeholder” fillings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. It further argues that the policy is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.

On the surface, the argument seems plausible, but a deeper analysis reveals that the policy will have huge unintended consequences that will outweigh the benefits to the government. Giving full discretion to USCIS bureaucrats to deny applications, petitions, and requests without the opportunity to cure the defect will only raise the stakes for applicants, petitioners, and requestors.

Regardless of how one feels about this new policy, it is here to stay and have already taken effect as of September 11, 2018. Unless overturned by the courts or a new change is effected, those who file and submit petitions to the USCIS has a new hurdle and challenge to overcome. For petitioners, applicants, and requestors of immigration benefits, the implication of this new policy is obvious; “There is little or no room for mistakes” when filling and submitting documents to the USCIS. One mistake or failure to submit a supporting document could lead to denial of benefit without the opportunity to cure the defect.  To be safe, it is strongly recommended that you consult an experienced immigration attorney, who will thoroughly evaluate your case, and provide guidance on required documentation.