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More Immigration Petitions May Be Denied Outright Under New USCIS Policy

On September 11, 2018, the U.S. Citizenship and Immigration Services started implementing a new policy with regard to the “Issuance of Certain RFEs and NOIDs”. The new Policy Memorandum was published on July 13, 2018 and is identified as PM-602-0163. Under this policy, USCIS examiners may deny an application, petition, or request without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility.

This new policy rescinded the long time rule enacted under the USCIS 2013 Policy Memo which required USCIS examiners to issue RFEs or Notices of Intent to Deny (NOID) if it appears that the petition is approvable upon submission of additional documents. The reason given by USCIS for the issuance of this policy is to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitions and requestors to be diligent in collecting and submitting requested evidence. Interestingly, the USCIS states that it is not intended to penalize filers of innocent mistakes or misunderstanding of evidentiary requirements. But implementing the policy as written in the new Policy Memorandum will have the effect of penalizing filers of “innocent mistakes” by depriving them of opportunity to correct the error. How is this new policy applied?

James, a U.S. citizen filed a petition for his spouse Jane. He submitted the accomplished forms I-130, G325s with supporting documents. When his petition is being examined, James appear to have had marriages and divorces prior to marrying Jane. He did not submit copies of his divorce decrees.

Before September 11, 2018, the U.S.Citizenship and Immigration Services will send a Request for Evidence providing James an opportunity to prove that he was indeed divorced by submitting certified copies of divorce judgment. After USCIS receives the requested documents, the petition will be approved. But with the new policy effective September 11, 2018, failure to show eligibility on initial filing will result in outright denial without an opportunity to correct it through an RFE. This means without proof of eligibility, the petition may be denied right away based on the new guidance. USCIS mentions in the published guidance that if the regulations, the statute or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no submission, the petition may be denied.

Immigration Benefits Affected

Petitioners and applicants who file immigration benefit applications with USCIS will be affected by this new policy. This includes the following applications and petitions filed after September 11, 2018: naturalization applications, all family based petitions, temporary work visas such as H1Bs, Os and other business related visas, immigrant petitions and adjustment of status under any preference category, or the Violence Against Women Act.

The new policy will make it easier for USCIS to deny petitions and applications. If the request for immigration benefit is denied under the new policy, a new application or petition may be re-filed with new supporting documents but they will be penalized with paying a new filing fee.

In June 28, 2018, there was another USCIS proposed policy that mandates USCIS to put in removal proceedings those individuals with denied applications and petitions if the effect of the denial would render the individual applicant or beneficiary to be in unlawful status. This will have a devastating effect on significant number of applicants or beneficiaries with denied petitions. Also, this will result in the unnecessary use of of government resources to put them in removal proceedings because most of these individuals would have their immigration benefits granted anyway if provided with the right opportunity to do so.

To avoid the harsh consequence of this new policy, one must be very diligent in preparing USCIS petitions and applications. Consulting with legal professionals before filing will be a prudent step in order to ensure that they are eligible for the benefits being applied for and that they have approvable applications and petitions.

(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1-888-930-0808; email at law@tancinco.com, www.facebook.com/tancincolaw or visit website at www.tancinco.com.)

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