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USCIS Requests for Evidence to Petitioners Before Application Denials to Become Discretionary

As of September 11, 2018, 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).

This is yet another of the new policies in the wake of the Buy American, Hire American Executive Order (BAHA) that are making it harder to obtain immigration benefits.

USCIS Director L. Francis Cissna noted that this change in policy was “long overdue,” that predicts it will “discourage frivolous filings and skeletal applications that are used to game the system” and ultimately improve USCIS efficiency.

Previously, the policy on “initial” denials was that they should not be issued unless there was “no possibility” of approval. Under the new policy, officers have “full discretion” to issue denials when they deem it appropriate. If the officer believes that all initial evidence has not been submitted, a denial may be issued without giving the petitioner or applicant an opportunity to explain or submit additional documentation. A denial could be issued even in cases where USCIS itself has simply missed or misplaced some of the submitted documentation. This, in combination with the USCIS’ new policy of issuing NTAs with denials when the foreign national has no other underlying status, is not only harsh, but punitive.

Whether these new policy guidances will survive expected legal challenges is yet to be seen.

Jackson Lewis P.C. © 2019


About this Author

Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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