USCIS Gives Adjudicators More Authority to Deny Filings Without a Request for Evidence

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At a glance

• Effective September 11, 2018, USCIS adjudicators will be authorized to deny a petition or application without a request for evidence (RFE) if the original submission lacks sufficient initial evidence required to establish eligibility for the immigration benefit requested.
• USCIS has rescinded a policy that restricted an adjudicator’s ability to deny a case without first giving the petitioner or applicant an opportunity to provide more evidence to prove the case.

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The situation

Effective September 11, 2018, USCIS adjudicators can deny an application or petition without issuing a request for evidence (RFE) or notice of intent to deny (NOID) if the original submission lacks sufficient initial evidence to establish eligibility for the benefit.

The new guidance withdraws a prior policy that permitted an adjudicator to deny a case without an RFE or NOID only if there was no possibility that additional evidence could rectify a deficiency in the filing.

The guidance will apply to all petitions and applications received after September 11, 2018.

What the new guidance means for employers and foreign nationals

Though the memorandum instructs adjudicators to deny without an RFE only if the case lacks sufficient “initial” evidence, it is not yet clear how the agency will interpret that term. Petitioners and applicants will need to work closely with their immigration counsel to ensure that all evidence necessary to demonstrate eligibility is obtained before an immigration benefit application is submitted.

The new guidelines come as USCIS also takes on new and expanded enforcement priorities that could increase the negative consequences of a petition or application denial. The agency will soon start initiating removal proceedings against those whose application for an immigration benefit – such as an extension of a nonimmigrant stay or an application for adjustment of status – is denied and whose underlying status has expired.

Fragomen will closely monitor the implementation of the new guidance and will issue additional client alerts as we discern denial trends.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.