USCIS may deny Application and Petitions without issuing any RFEs and NOIDs.

• The PM authorizes the Officers to use their discretion to deny incomplete and ineligible applications and petitions submitted for immigration benefits without issuing a Request for Evidence or a Notice of Intent to Deny.
• This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence.
• Authorizes Officers to validate and corroborate evidence by consulting USCIS or other governmental files, systems, and databases or other publicly available information.
• Directs the officers to avoid multiple RFE’s. The officers directed to ask all the additional evidence that he anticipates having to request.
• Notice of Intent to Deny to be issued based on evidence of ineligibility or on derogatory information known to USCIS, but not to the applicant, petitioner or requestor.

The USCIS issued a Policy Memorandum (PM-602-0163) on July 13, 2018, with regard to the issuance of certain RFE’s and NOIDs. This PM applies to all Petitions and Applications except DACA.

As per USCIS Director L. Francis Cissna, this new PM is to deter and deny the frivolous or meritless claims that has bogged down the immigration system. In her own words, “Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”

However, giving the Officers such unfettered discretionary powers will result in the abuse of powers. Denial of the Petition or Application without issuing RFE or NOID and without giving an opportunity ‘to be heard’ is a violation of the due process of law. In administrative proceedings, a fair hearing is required. With respect to action taken by administrative agencies, the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding, so long as a hearing is held before the final order becomes effective.[1]

As per the prior memo issued in 2013, an office should issue an RFE unless there was ‘no possibility’ that the deficiency could be cured by submission of additional evidence. The new rule changes the ‘no possibility’ policy and restores the adjudicators full discretion to deny applications, and petitions without first issuing an RFE or a NOID, when appropriate.

As per USCIS this policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder’ filings.,/p>

Denials Based on Lack of Sufficient Initial evidence.

If all required initial evidence is not submitted with the benefit request, USCIS in its discretion may deny the benefit request for failure to establish eligibility based on lack of required initial evidence.

Below are few examples of cases that may result in denials in an employment immigration perspective.

• Filing an H-1B petition beyond 6 years without any proof of a pending PERM for more than 365 days or an approved I-140.
• Filing an H-1B petition without mentioning any project to which the Beneficiary will be assigned to work, especially in-house position.
• Refiling an H-1B after a denial with the same documentation without any additional evidence to prove the eligibility.
• Refiling an I-140 Immigrant Petition after the denial of the previous petition without providing additional evidence to cure the previous denial reasons.
• Filing F-1 Change Status from B-1/B-2 or any other immigrant status, where the start date of the program is beyond 30 days of the expiry of the non-immigrant status.
• Where the H-1B transfer is filed based on the CAP H-1B that has been revoked or subsequently revoked based on fraud or misrepresentation findings
• Filing H-1B petitions with no evidence of the work arrangement at the third party client locations.

The new memo directs the officers to include in a single RFE all the additional evidence they anticipate having to request. Directs the officers to avoid multiple RFE unless the response to an RFE opens up new lines of inquiry, which warrants a follow-up RFE.

In addition, the new memo authorized the officers to make decision based on information available on USCIS or other governmental files, systems, and databases, or other publicly available information that is readily accessible.

Also, the USCIS may issue a NOID based on evidence or on derogatory information know to USCIS, but the applicant, petitioner or requestor is either unaware of the information or may be unaware of its impact on eligibility.

Law Office of Thomas V. Allen is closely watching the impact of this Policy Memorandum on the petitions that are filed. Will keep you updated of any new developments. [1] Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941).