USCIS Memo on Denying Cases Without RFE / NOID

On July 13, 2018, U.S. Citizenship and Immigration Services (USCIS) posted a policy memorandum that increases the discretion of USCIS adjudicators to deny applications, petitions, or requests for immigration benefits without first issuing a request for evidence (RFE) or a notice of intent to deny (NOID). In summary, the memo provides that, effective September 11, 2018, the USCIS may deny a case without first issuing an RFE or NOID, if the case is filed without the required initial evidence.

Existing Policy Strictly Limits Ability to Deny Without RFE / NOID

Per a USCIS policy memo issued in 2013, the USCIS is already permitted to deny any filing without issuing an RFE or NOID in cases where the “… applicant, petitioner, or requestor has no legal basis for the benefit / request sought, or submits a request for a benefit or relief under a program that has been terminated.” Other than in these narrow circumstances, the USCIS generally has been required to issue an RFE or NOID prior to denying a case.

New Policy Expands Ability for USCIS to Deny Without RFE / NOID

Per the new memo, for any case filed after September 11, 2018, the USCIS now will also be permitted to deny a case without issuing an RFE or NOID “… for failure to establish eligibility based on lack of required initial evidence.”

The memo provides two examples of the types of situations in which such a denial would be appropriate:

• Waiver applications submitted with little to no supporting evidence
• Cases in which the regulations, the statute, or form instructions require the submission of an official document or other evidence establishing eligibility at the time of filing and there is no submission (For example, family-based or employment-based categories where an affidavit of support (form I-864), if required, was not submitted with the application to register permanent residence or adjust status (form I-485).)

Memo Does Not Signify End of RFEs

It is important to note that the memo still limits the situations in which a USCIS officer may deny a case without providing the stakeholder with the opportunity to respond to an RFE or NOID. For instance, if an H1B petition is filed with the basic required documents, it does not appear that the memo authorizes denial of the petition immediately, based solely on common RFE subjects such as employer-employee relationship or specialty occupation. On the other hand, if the petition is filed after September 11, 2018 without a labor condition application (LCA) – as required by the form I-129 instructions – the USCIS would have the discretion to deny the case outright.

Conclusion

This new memo continues the recent trend under the Trump Administration to make the U.S. immigration system more onerous, for both documented and undocumented immigrants. It also highlights the need to ensure cases are properly filed, especially given how unforgiving the USCIS adjudication process can be for employers, employees, and their families.

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