On July 13, 2018, the U.S. Citizenship and Immigration Services (USCIS) posted a guidance document restoring an adjudicator’s ability to exercise discretion and deny applications, petitions or requests without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) should they include (1) insufficient initial evidence, or (2) evidence for which there is no legal basis for the benefit or request sought (statutory denial).
- Insufficient Evidence
Under the new policy, an adjudicator may deny an application for insufficient initial evidence if it (a) includes little or no supporting evidence, or (b) no official document is submitted, where the regulation, statute or form requires a submission. For example, an Affidavit of Support (Form I-864), if required, was not submitted with an Application to Register Permanent Residence or Adjust Status (Form I-485).
- Statutory Denial
The new policy also restores an adjudicator’s ability to deny an application where (a) there is no legal basis for the benefit/request sought, or (b) a request for a benefit/relief is submitted under a terminated program.
Note: This Statutory Denial does not affect the (Request for Evidence) RFE and (Notice of Intent to Deny) NOID policies that apply to any case under litigation or subject to an injunction, such as Deferred Action for Childhood Arrivals (DACA) request adjudications which at the time of this posting are under a preliminary injunction.
This updated document is in response to a 2013 policy memorandum which included a “no possibility” provision that only allowed adjudicators to issue a denial in statutory situations where a nonexistent benefit was requested. In all other circumstances, the old policy had the effect of limiting an adjudicator’s response to either an RFE or NOID. Consequently, USCIS found that the “no possibility” provision encouraged frivolous or incomplete “placeholder” filings.
The new policy seeks to restore an adjudicator’s ability to issue denials. It is not intended to penalize filers’ innocent mistakes, rather the policy is meant to encourage applicants to be diligent with their submissions, which is expected to ultimately expedite USCIS processing times.
Effective September 11, 2018, under this policy the USCIS will continue to issue statutory denials when appropriate. Additionally, if sufficient evidence is not submitted initially as required, an adjudicator may exercise their discretion to issue an RFE, NOID or deny the application, petition or request.
If you have questions on how this policy change may affect your immigration status or application, please contact Berardi Immigration Law to speak to one of our attorneys today!
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