On July 13, 2018, USCIS posted an updated policy memorandum that will now give USCIS adjudicators full discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). This updated guidance is effective September 11, 2018 and will apply to all requests received after this date.

The new memo rescinds a previous 2013 policy memorandum that provided guidance for the issuance of RFEs and NOIDs when the submitted documentation did not establish eligibility at the time of filing. The 2013 memo only allowed the issuance of denials without an RFE or NOID in circumstances where there was “no possibility” of approval upon submission of additional evidence. This “no possibility” policy is what limited an adjudicator’s discretion to issue a denial.

In rescinding the 2013 memo, USCIS now restores an adjudicator’s full discretion to deny an application, petition, or request without first issuing an RFE or NOID. Therefore, if all required initial evidence is not submitted with the benefit request, USCIS may in its discretion deny the request for failure to establish eligibility based on the lack of required initial evidence. The main purpose of the updated policy is 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.”

The increased scrutiny as of late has made it all the more important for Employers to ensure all required documents are initially submitted with the benefit request. Employers should not expect an opportunity to later submit additional documentation required to establish eligibility. Take this message from USCIS Director Cissna as a clear indication of this:

“For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits,” said USCIS Director L. Francis Cissna. “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.”

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