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Posted on: July 23rd, 2018
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USCIS Updates Policy Guidance for Certain Requests for Evidence and Notices of Intent to Deny

United States Citizenship and Immigration Services (USCIS) issued a policy memorandum providing guidance to USCIS adjudicators with respect to their discretion in denying an application, petition, or request without issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if proper evidence was not initially supplied or if the evidence of record falls short of establishing eligibility. Effective September 11, 2018, the updated guidance applies to all applications, petitions, and requests. Deferred Action for Childhood Arrivals (DACA) petitions which are received after the effective date are exempt from the guidance. Preliminary injunctions have been issued by courts in California and New York which have caused the policy memorandum to be inapplicable to the adjudication of DACA requests.

USCIS Director Francis Cissna stated that the policy memorandum was motivated by expediting “frivolous or meritless claims,” which have inhibited the processing ability of the immigration system. According to Cissna, granting more power to the discretion of adjudicators, “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.”

Unless all required initial evidence is submitted along with the benefit request, USCIS retains the right to, at its discretion, may deny the benefit request due to a lack of evidence. Filings that may be denied without USCIS adjudicators to send an RFE or NOID include but are not limited to:

  • Waiver applications submitted with little to no supporting evidence; or
  • Cases in which the regulations, statute, or form instructions require the submission of an official document or other form of evidence which establishes eligibility at the time of filing, with no such submission. As an example, an Affidavit for Support (Form I-864), if required, was not submitted with an Application to Register Permanent Resident or Adjust Status (Form I-485).

 

For more information, view the USCIS announcement.

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USCIS Updates Notice to Appear Policy Guidance to Support DHS Enforcement Priorities

United States Citizenship and Immigration Services (USCIS) announced an update to its guidance for the policy for issuing Form I-862, Notice to Appear, mirroring the immigration enforcement policy of the Department of Homeland Security. A Form I-862 is issued to an alien instructing them to appear before an immigration judge on a certain date, and it represents the commencement of removal proceedings. Resulting from the new guidance, USCIS officers are now permitted to issue a Notice to Appear to a wider range of cases in which the individual is removable and evidence exists indicating fraud, criminal activity, or where an applicant is denied an immigration benefit and is subsequently illegally present in the United States.

The updated guidance does not apply to Deferred Action for Childhood Arrivals (DACA) recipients under the following circumstances:

  • When processing an initial or renewal DACA request or DACA-related benefit request; or
  • When processing a DACA recipient for possible termination of DACA.

USCIS will maintain its current practice of applying the 2011 NTA guidance to the aforementioned instances and will continue following the DACA information-sharing policy which is currently in place regarding information supplied by those requesting DACA.

In addition to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), USCIS is authorized to issue NTAs; the update pertains to the guidelines used when determining whether to issue an NTA or to refer the case to ICE. In most cases, the revised policy instructs USCIS to issue an NTA in the following cases involving individuals who are removable:

  • Cases in which fraud or misrepresentation is substantiated, and/or in which an applicant abused any program related to receiving public benefits. Even if the case is denied for other reasons than fraud, USCIS will still issue an NTA.
  • Criminal cases in which the applicant has a charge or conviction of a criminal offense or has committed acts which are chargeable as a criminal offense, even if that conduct was not the basis for the denial or ground of removability. Cases involving serious criminal activity may be referred to ICE prior to adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which a Form N-400, Application for Naturalization is denied on good moral character grounds as the result of a criminal offense.
  • Cases in which the applicant is unlawfully present in the United States after the denial of his or her application or petition.

Not affected by the updated policy are the following categories of cases:

  • Cases in which national security issues are involved;
  • Cases in which statutes or regulations require issuing an NTA;
  • Temporary Protected Status (TPS) cases, except those cases in which, after applying TRP regulatory provisions, a TPS denial or withdrawal would result in no alternative legal status for the individual;
  • DACA recipients and requestors when either (A) processing an initial or renewal DACA request or DACA-related benefit request or (B) processing a DACA recipient for possible DACA termination.

Under a separate, concurrently issued policy guidance, USCIS officers are to continue following PM 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear in Cases Involving Inadmissible and Removable Aliens with regard to the issuance of NTAs and Referrals to ICE for DACA recipients and requestors.

For more information, view the USCIS announcement.

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