New Government Policy on Issuing Denials in Legal Immigration Cases

Last week, U.S. Citizenship and Immigration Services (USCIS) issued a new policy memorandum making it easier for its officers to deny applications for immigration benefits. Specifically, the memorandum provides that, effective September 11, 2018, USCIS may, in its discretion, deny an application that lacks the required initial evidence to establish eligibility, without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Required initial evidence may include any official document, form or other evidence that is required by the regulations, statute or form instructions.

This new memorandum explicitly rescinds prior USCIS guidance, which instructed USCIS officers to issue an RFE or NOID unless there was “no possibility” that the deficiency could be cured by the submission of additional evidence. Under the prior policy, outright denials were effectively issued only on statutory grounds, i.e. where there was no legal basis for the benefit being sought or the benefit being sought was nonexistent. However, USCIS officers are now empowered to deny an application without providing the applicant an opportunity to correct or explain any deficiencies.

The consequences of this new policy could be severe, particularly in light of another USCIS policy memorandum issued on June 28, 2018, which vastly expanded the agency’s ability to issue Notices to Appear (NTAs), the charging documents that place noncitizens in removal proceedings before an immigration judge, following the denial of a benefits application. Under prior guidance, NTAs were to be issued in cases involving national security threats, criminals and noncitizens engaged in fraud. However, the new guidance instructs USCIS officers to issue an NTA in a broader range of circumstances, including any case in which, upon denial of the application, an applicant is unlawfully present in the U.S. Once issued an NTA, the individual is required to appear at a hearing before an immigration judge rather than being permitted to leave the U.S. voluntarily.

Both of these policy changes are particularly concerning in light of the changes announced last year regarding the adjudication of extension petitions. For years, a USCIS policy memorandum directed its officers to defer to prior determinations of eligibility when adjudicating extension petitions involving the same parties and underlying facts as the initial petition. However, last year, USCIS rescinded this memorandum and directed its officers to thoroughly review the petition and evidence to re-determine eligibility for the benefit being sought. Now, if an extension petition is re-adjudicated, it may be denied without providing the applicant an opportunity to correct or explain any deficiencies. Moreover, if the denial leaves the individual out of status, USCIS would then issue an NTA rather than permitting the individual to leave the U.S. voluntarily.

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