The USCIS announced today in PM-602-0163 the rescission of the standing policy that Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs) be issued before denial. The current policy directs adjudicators not to deny a case without giving the petitioner a chance for rebuttal unless there was “no possibility” for the deficiency to be cured in the RFE response. The updated policy, effective September 11, 2018, will give adjudicators “full discretion” to summarily deny a case “when appropriate.” Note that the policy change does not apply to DACA requests because of the preliminary injunctions issued on that category.
The Service describes the policy change as an effort to increase adjudicatory efficiency by discouraging and minimizing frivolous petitions, placeholder petitions, and strategic “skeletal” submissions, all while encouraging stakeholders to “be diligent in collecting and submitting required evidence.” The Memo states that the new policy will be implemented in two situations: (1) statutory denials, and (2) lack of sufficient initial evidence.
The first cited basis for the new policy, “statutory denials,” allows summary denials without RFE/NOID in cases where there is no legal basis for the benefit sought. The USCIS, without limitation, contemplates that this category of summary denial will include requests for benefits no longer offered under terminated programs or cases where the request is sought based on a relationship or extreme hardship to a non-qualifying relative.
The new policy cites “lack of sufficient initial evidence” as the second basis for summarily denying cases without RFE/NOID. The Memo lists two examples of cases that are subject to summary denial. One was waiver applications with little to no supporting evidence. The other includes requests that fail to submit a required official document or other evidence to establish eligibility at the time of filing. It specifically mentions family or employment based Adjustment of Status Applications (I-485) that require but lack an Affidavit of Support (Form I-864).
This policy change is likely to have adverse implications on petitioners, applicants, requestors, and other stakeholders because of the breadth of the grant of adjudicatory discretion. The spirit of this Memo is in line with the recent wave of immigration policy changes meant to quietly increase the difficulty of successfully navigating immigration laws. Being just another “brick” in the “invisible wall,” this Memo is framed as an innocuous procedural shift but can be exercised by adjudicators in a way that has measurable effects on the overall approval rate.
Admittedly, none of the scenarios listed in the Memo are offensive to the notion of due process. However, those who follow immigration law are understandably weary about any increase in adjudicatory discretion. At its worst, this policy change could be leveraged to justify another silent increase in the petitioner’s burden. The grant of discretion to deny cases that lack “sufficient initial evidence” is not limited to skeletal “placeholder” filings or frivolous requests. Rather, the Memo as written could be used to justify a new adjudicatory trend to summarily deny petitions that would have otherwise been issued omnibus RFEs that address every aspect of eligibility. In such a case, the summary denial could potentially put an alien out of status, cut short an automatic extension, and eliminate the possibility of refiling the case as an extension or change of status. With no notice, opportunity to respond, or record of rebuttal argument, such a case would be difficult to appeal. In other words, the misapplication of the discretion granted by this Memo would render immigration attorneys practically toothless in their duty to advocate for clients.
Hopefully this change in policy will be innocuous and no good faith petitions will be summarily denied. Even if so, this new Memo creates yet another potential pitfall in the increasingly difficult immigration process. More than ever, stakeholders are discouraged from applying for any immigration benefit without an immigration attorney. Further, immigration attorneys must rise to the challenge and process client cases diligently to avoid a last-minute filing scenario where a skeletal application might have been used in years past.
