7/30/18 – USCIS posted a webpage update indicating that it will postpone the effective date of the NTA memorandum until USCIS issues operational guidance.
Increased Discretion to Deny Petitions without Requests for Evidence
On July 13, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum (PM) allowing USCIS adjudicators discretion to deny an application or petition without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Adjudicators are instructed to do so where 1) “initial” evidence is not submitted or 2) the evidence in the record does not establish eligibility. The Memorandum goes into effect on September 11, 2018. For more information on this USCIS policy, see https://www.uscis.gov/news/news-releases/uscis-updates-policy-guidance-certain-requests-evidence-and-notices-intent-deny.
USCIS Distinguishes Between “Initial” Evidence and “Additional” Evidence
What constitutes “initial” evidence varies based on the application/petition type. Examples of initial evidence include a marriage certificate for an immigrant visa petition on behalf of a spouse, or a birth certificate for most I-485 adjustment of status applicants, or evidence of maintenance of status if the beneficiary is seeking a change or status or extension of stay.
Situations where the evidence in the record does not establish eligibility could include a naturalization applicant under the age of 18 (as the minimum age to apply is 18), a petitioner seeking to file an immigrant visa petition for a grandparent or niece (as there is no visa category for these family relationships), or a company seeking to file a L-1 petition which has no relationship to a foreign company abroad.
The new standard for “initial evidence” causes more concern. If the adjudicator fails to see a particular document, or concludes that, for example, the educational documents provided are insufficient, then rather than issue an RFE for clarification, the adjudicator can now simply deny the petition/application. This could represent a sea change from the prior policy that instructed adjudicators to seek clarification when initial evidence is questioned. (Note, however, that the now discontinued policy only came into existence in 2013, and did not radically change prior USCIS practice. It is therefore unclear how or whether a return to pre-2013 adjudication practice will result in increased denials.)
Increased Use of Notices to Appear (NTA)
On July 5, 2018, USCIS published a Policy Memorandum regarding the use of Notices to Appear (NTA), which initiate removal (a/k/a “deportation”) proceedings. Of particular concern is a section in the Memorandum describing situations where USCIS denies an extension of stay or change of status request, and the individual no longer holds valid nonimmigrant status. An NTA may now be issued to these foreign nationals now deemed “removable” (i.e. deportable) from the United States. This Memorandum further implements Executive Order 13768, Enhancing Public Safety in the Interior of the United States and appears to be immediately effective. For more information on this USCIS policy, see https://www.uscis.gov/news/news-releases/uscis-updates-notice-appear-policy-guidance-support-dhs-enforcement-priorities.
This new policy may result in USCIS issuing NTAs once an unfavorable decision on an application, petition, or benefit request is issued, if the alien is not lawfully present in the United States. Examples include:
- An individual might be issued an NTA, and placed in removal proceedings, if that individual’s underlying nonimmigrant status expires while the green card process is pending, and USCIS denies the I-485 adjustment of status application.
- An individual might be issued an NTA, and placed in removal proceedings, if their application to extend nonimmigrant status is denied, and, due to USCIS processing backlogs, their underlying nonimmigrant status has expired by the time USCIS finally denied their application.
Read together, these policy shifts grant USCIS more power to possibly increase denials without first requesting additional evidence, and then refer individuals to removal (deportation) proceedings.
At this time, it is too early to know whether USCIS will follow these new policies to increase denials or issue NTAs more frequently. Therefore, where possible, nonimmigrant status should be maintained even after filing Form I-485 adjustment of status applications if possible, and individuals should be careful to confirm that Form I-94 records in the CBP database are accurate after each and every entry to the United States.
Jackson & Hertogs will provide updates as they become available.
