In mid-July, U.S. Citizenship and Immigration Services gave immigration judges, or adjudicators, the discretion to deny an application, petition or request for an immigration benefit without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if the initial evidence is not submitted or if the evidence in the record does not establish eligibility.
This policy change takes effect on September 11, 2018.
Previously, USCIS adjudicators were instructed to issue RFEs unless there was “no possibility” that the deficiency could be cured by the submission of additional evidence. This restricted the adjudicator’s ability to deny a case without first providing a petitioner or applicant with the opportunity to provide additional information or evidence.
This new policy shift rescinds the “no possibility” policy and gives adjudicators full discretion to deny applications, petitions and requests without first issuing an RFE or NOID. While this policy change is intended to discourage frivolous or substantially incomplete filings, it will also have the tangential effect of increasing the number of cases that are denied based on innocent mistakes, technicalities or misunderstandings of evidentiary requirements.
Given the increased risks, Waller's immigration team will work closely with clients to bolster all cases filed with USCIS to ensure that all the evidence necessary to demonstrate eligibility is obtained before an immigration benefit is requested. We recommend renewing nonimmigrant visa status as soon as permitted — six months prior to the expiration of the status and requesting expedited processing of eligible applications or petition when available. Employers should also consider commencing the permanent residence sponsorship process early to avoid having to file extension requests.
This new policy comes as USCIS is also undertaking new and expanded enforcement priorities that could result in the agency initiating removal proceedings against individuals whose request for an immigration benefit, such as an extension of nonimmigrant status or an application for adjustment of status, is denied and whose underlying status has expired.
To be sure, USCIS recently updated its policy regarding referring cases for removal proceedings and issuing Notices to Appear (NTAs) that will potentially have an adverse impact on applicants or beneficiaries who are sponsored for employer-based petitions and applications. The new guidance requires the issuance of an NTA to initiate removal proceedings if an applicant or beneficiary does not first file an appeal when denial of a benefit would render the applicant or beneficiary “not legally present” in the United States.
Under existing policy, an applicant would have been advised to depart the United States voluntarily or pursue other options to remain legally in the country. Furthermore, U.S. Immigration and Customs Enforcement (ICE) has previously been responsible for determining when removal proceedings should be initiated against potentially removable immigrants. Under the new policy change, USCIS may now issue NTAs and initiate removal proceedings without consulting ICE upon denial of an application or petition for an immigration benefit if the individual is deemed removable at the time an application or petition is denied. Consistent with USCIS’s expanded enforcement initiative, beginning August 9, 2018, any foreign national admitted into the United States in F or J status for Duration of Status (D/S) will accrue unlawful presence in ANY of the following circumstances:
- The day after being ordered excluded, deported, or removed;
- The day after completing the course of study or program, including authorized practical training, if applicable, and any authorized grace period; or
- The day after the individual no longer pursues the course of study or authorized activity, or the day after engaging in any unauthorized activity.
In situations where an F or J non-immigrant is admitted into the United States for a specific date stated on his/her I-94 admission record, unlawful presence will accrue following the expiration date on the I-94 admission record. Previously, a foreign national who was admitted into the United States for Duration of Status and who overstayed or violated such status did not immediately begin accruing unlawful presence. Nevertheless, such an individual was considered to be out of status and subject to removal proceedings.
Practically speaking, the penalty associated with the accrual of unlawful presence can lead to dire results. Indeed, F or J non-immigrants who have accrued more than 180 days of unlawful presence and then depart the United States are subject to a three-year bar to admission, while those who have accrued more than 365 days of unlawful presence and then depart the United States are subject to a ten-year bar to admission. Such individuals are generally not eligible to apply for a non-immigrant visa, immigrant visa, admission, or permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.
READ: Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)
This immigration alert is intended for informational purposes only. For additional information about these recent policy changes or general immigration issues, please contact Vinh Duong at 615.850.8936, Nora Katz at 615.850.8730, or Elizabeth Hernandez at 615.850.8797.