September 19, 2018

September 19, 2018

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USCIS Explains New Policy on Discretionary Application Denials

Beginning September 11, 2018, USCIS immigration officers will have more discretion to issue petition and application denials without first issuing Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs).

On September 6, 2018, the Ombudsman’s Office provided further details on the new policy change. The following was noted:

  • The new policy takes effect on September 11, 2018, and will apply to applications received by USCIS on or after September 12, 2018.

  • Adjudicators have full discretion to issue denials where the initial evidence submitted does not establish eligibility or there is no possibility of approval based on the evidence submitted.

  • The new policy is not meant to penalize those who make innocent mistakes or who misunderstand the requirements establishing eligibility, but is intended to promote complete filings so resources can be allocated to timely adjudicate petitions.

  • If the initial required evidence is missing, adjudicators will determine whether this was due to mistake or misunderstanding and to what extent the applicant tried to comply with the instructions and regulatory requirements. If it is determined that the “error” was due to a mistake or misunderstanding, an RFE would be issued instead of an outright denial. USCIS declined to clarify the factors for making a determination, but it provided, as an example, missing pages from an applicant’s passport.

  • USCIS will publish optional checklists outlining the initial required evidence for each visa classification. These checklists are intended for information purposes and are not meant to replace or change the regulatory or statutory requirements.

  • The new policy does not affect or change appeal rights.

The checklists were issued on September 11, 2018, and are available at USCIS.gov.

USCIS is in the process of training officers regarding the new policy memo, and the Field Adjudicators Manual has been updated with guidance on the subject. While USCIS has stated its intention not to penalize “innocent mistakes,” it is unclear how this will play out in practice. For instance, how will USCIS actually determine whether the error was just a mistake on the part of the petitioner or even on the part of the USCIS? Did the petitioner forget to include a transcript or was the copy of the transcript lost by USCIS after the filing arrived at the Service Center?

Jackson Lewis P.C. © 2018

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About this Author

Jessica Lang Immigration Lawyer Jackson Lewis
Lang

Jessica K. Lang is an Associate in the Boston, Massachusetts, office of Jackson Lewis P.C. Her practice focuses solely on business immigration matters. Ms. Lang counsels corporate clients and their foreign national employees on a full range of employment-based non-immigrant visas, as well as petitions for Permanent Labor Certification before the U.S. Department of Labor and petitions for lawful permanent residence with the U.S. Citizenship and Immigration Service. She also advises clients on I-9 and E-Verify compliance issues.

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