New USCIS Denial Memo
What is the “Denial Memo” about which there has been much recent concern and where can I find a copy?
On July 13, 2018, USCIS issued a policy memorandum titled: Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM), Chapter 10.5(a), Chapter 10.5(b). It is available at: https://www.uscis.gov
What is an RFE? What is a NOID?
A request for evidence (“RFE”) may be issued to request initial evidence that should have been included with the original filing, or additional evidence beyond that normally included in the initial filing. USCIS usually allows up to 84 days to respond to an RFE. An RFE is akin to a series of follow-up questions to provide further documentation in support of information already submitted, or additional explanation on questions of law or fact that may be a close judgment call. A notice of intent to deny (“NOID”) indicates that the case will likely be denied, but gives the case filer a “last chance” to correct any misunderstanding about the merits of the pending matter. A period of 30 days is given to respond to a NOID.
Why is there concern about this memo?
The memo explains that adjudicators have the discretion to deny a pending petition or application without first issuing an RFE or a NOID. Previously, as long as signed forms and the correct filing fee check were received, USCIS would accept the case for processing and then follow up with the petitioner or applicant if supporting documentation or evidence was missing. USCIS has now explained that it will be stricter in its review of cases, and that it will not provide an opportunity to supplement a case lacking adequate supporting documents. Specifically, the memo states that USCIS may deny cases without providing any notice in the form of an RFE or NOID “if the initial evidence is not submitted” or “if the evidence in the record does not establish eligibility.” Initial evidence normally includes the kinds of documents listed in the form instructions. While it may seem fair to deny a case because the submitter did not properly follow the form directions, it is also noted that USCIS sometimes includes contradicting instructions on the form instructions and its website, or sometimes lists critical information in footnotes on the website. It may be more fair and reasonable to deny a matter submitted in skeletal format – just the signed form and a check – than to deny a matter that contained most of the required information but lacked an item specified in a footnote. The larger concern has to do with the phrase “if the evidence in the record does not establish eligibility.” What does that mean? If the case is well documented but the examiner feels that some additional information is required to support an approval, should the examiner take the extra time to issue an RFE or NOID? A narrow reading of this last phrase could lead to the interpretation that no RFE or NOID would ever be required because if the examiner is not ready to approve the matter, it should just be denied. Some RFEs received in recent years have been quite long and have requested information at a level of detail far beyond what would have been needed to obtain an approval in prior years.
If a case is denied, can’t persons appeal?
An appeal may be possible, but an appeal is limited to the documents contained in the administrative record. Once a case has been decided, additional new documents usually cannot be added to an appeal. Appelate review is limited to the original file record.
What about refilling the application or petition?
Refiling may be possible, but if a person has fallen out of status, a new filing may be too late to provide a lawful immigration status to the beneficiary while he or she awaits a decision on the new filing.
If a case is denied, will the case beneficiary automatically be placed into removal (deportation) proceedings?
If a beneficiary’s underlying immigration status has already expired, there has always been the possibility that the beneficiary could be placed into removal (deportation) proceedings. Another recent memo, issued on June 28, 2018 included a more assertive reminder that adjudicating officers continue to retain that authority, with a focus remaining on matters of national security, matters of fraud, and persons who have violated criminal laws. The memo also confirms that in the exercise of prosecutorial discretion, which may be exercised on a case-by-case basis, removal proceedings will not be initiated in all cases. The memo is available at: https://www.uscis.gov/.
What does this all mean?
The two memos referenced above are part of a continuing focus on matters of immigration law enforcement under a restrictive view of immigration law. In recent years, USCIS has been more aggressive in issuing RFEs, even though a majority of cases are still ultimately approved. These memos have a raised a concern that USCIS may move to an even harder approach of denying more cases without the “last chance” opportunity that an RFE provides, and would then aggressively move to place a much larger number of persons in removal proceedings. Although the adjudication environment for visa petition adjudications may continue to be difficult, a large increase in the number of persons referred to immigration court, while possible, may be less likely than some fear. In many jurisdictions, the wait for a hearing before an immigration judge is more than a year, and sometimes involves a wait of several years. Also, even though technically “removable,” most persons with a recent administrative application or petition denial would likely be eligible for “voluntary departure” under Immigration and Nationality Act (INA) Section 240B, which provides them with an additional 120 days to wrap up their affairs prior to departing the U.S. It would indeed be strange for an administration focused on “hard-nose” enforcement to waste resources sending persons to immigration court in order to provide them with an opportunity to obtain an extended period of time to remain in the U.S. upon the conclusion of which they can freely depart without penalty. In summary, although the government could move to apply these two memos in a grossly unreasonable way, that is probably unlikely for persons represented by immigration counsel. The denial memo specifically references forms submitted “with little to no supporting evidence” as well as cases missing companion forms required to complete the process under which the persons is applying for an immigration benefit. The persons most likely to be affected by these memos are persons who have not carefully prepared their filing and who have submitted an application or petition without the benefit and guidance of attorney support.
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