“Highlights” from the CIS Ombudsman on USCIS’ Policy Updates on RFE and NOIDS

As part of the US Citizenship and Immigration Services (USCIS) commitment to keep immigration lawyers and anyone applying for an immigration benefit on our toes, it has issued several new policy updates this year. This includes a  policy memo issued on July 13, 2018, regarding the issuance of certain Requests for Evidence (RFE) and Notices of Intent to Deny (NOID) which took effect on September 11, 2018.

Who does this new policy affect?

This new policy affects those who file an application or a petition for an immigration benefit with a USCIS Service Center or Field Office.

What was the old policy?

The previous policy as indicated in the June 3, 2013 USCIS Policy Memo (PM) gave guidance to adjudicating officers to exercise their discretion in determining whether to issue an RFE or NOID for a petition or application:

“This PM emphasizes that an RFE is not to be avoided; it is to be used when the facts and the law warrant. At the same time, an RFE is not to be issued when the evidence already submitted
establishes eligibility or ineligibility in all respects for the particular benefit or service. An unnecessary RFE can delay case completion and result in additional unnecessary costs to both
the government and the individual (a term used throughout this PM to refer to the person or entity filing the particular application, petition, or other request).”

The policy memo outlined the general principals for adjudicating officers when issuing an RFE or a NOID. The policy took into consideration the cost to both the USCIS and the individual applying for the immigration benefit. There were benefits to knowing that this USCIS was encouraged to issue an RFE because, even with the regulations, guidance and in some cases, checklists, the determination of whether someone qualifies for an immigration benefit is solely within the discretion of the adjudicating officer. One officer may accept a petition as approval where another may find that they need additional evidence to make a decision. Often, in the context of an L-1, H-1B or O-1 petition filing filed under Premium Processing, we will receive an RFE just under the 15 day processing time. If the USCIS does not provide a response within the 15 day period, the USCIS must refund the $1,225 Premium Processing fee. More often than not, I would many phone conferences and emails with my client to discuss a job description in great detail with a breakdown in the percentage of time for the L-1 position in the US and abroad only to receive an RFE from the adjudicator saying that it was “vague” and that additional evidence is required. In some similar cases, the petition would be approved without an RFE.

What is a lawyer to do in this situation? Warn the client from the first conversations that they are likely to get a request for evidence. Earlier in my career, I would prepare a petition and they would be approved. Then, as time went by, my experience grew but gradually we would get more and more RFEs. It’s a constant battle to look at previous RFEs to anticipate what the adjudicator will ask for and also working with the company and the individual beneficiary, who, if they’ve never been through this before, cannot understand why they have such a nitpicky lawyer and they may even think I’m trying to delay filing of the application asking for more and more documents and information.

What’s the new policy?

The new policy rescinds in its entirety the June 3, 2013 policy memo giving more discretion for an adjudicating officer to deny a petition or application without first asking for additional evidence or issuing a notice of intent to deny.

Based on a summary from the American Immigration Lawyers Association from a USCIS Ombudsman teleconference which we received just 6 days before the policy was to take effect, these are the key takeaways:

• This new USCIS policy takes effect on September 11, 2018 and will apply to applications received by USCIS on or after September 12, 2018.
• DACA and DACA-related applications are exempt from the memo, as well as asylum and refugee filings.
• Restores full discretion to adjudicators to issue denials without first issuing an RFE or NOID on statutory bases and for frivolous and/or incomplete filings.
• Discourages incomplete or “placeholder” filings where required evidence is submitted after the original petition/application is filed.
• The intent of the policy is to allow USCIS to focus resources on adjudicating applications instead of tracking down missing evidence.
• USICS will post new checklists on the USCIS website by September 11, 2018 as an operational tool to assist the public regarding what is the initial evidence required for a particular immigration benefit. These checklists are not meant to replace/change the regulatory requirements. The public still needs to review all statutes, regulations, form instructions, etc.
• The memo does not impact or change appeal rights.

So, when this new policy memo came out in July, I was trying to enjoy was a rare warm summer in England. Instead, it put fear in my heart. How are we to advise clients, which include companies who are investing millions into the US economy and creating US jobs and individuals sponsoring their close family members to join them in the US? Somehow, maybe after a glass of red wine (after work) and deep breaths (constantly), I developed a resolve to better prepare petitions and applications. I advised my staff on these changes and that we must work harder to do the best for our clients.

In the “highlights” from the teleconference, there are some nuggets of hope. For example, the policy memo “is not intended to penalize filers for innocent mistakes or penalize them for misunderstanding the evidence that is needed to establish eligibility, but is intended to encourage applicants and petitioners to be diligent in their submissions. The new policy is intended to discourage incomplete filings and to discourage frivolous “placeholder” filings.” I spend a lot of my energy and time building processes to avoid innocent mistakes so hopefully, if something happens, then the USCIS won’t deny an application resulting in a clients’ filing fees going down the drain.

So, there you have it. We’ll have to see how this new policy will play out. Will it result in a more efficient USCIS or will it just create more chaos? In the meantime, I can’t wait to see the new checklist USCIS was supposed to post on its website on September 11, 2018. I also believe that what doesn’t kill you will make you stronger and this will make us as immigration lawyers more focused on our practice to do the best for our clients.

—Janice Flynn, Principal Lawyer

If you require more information on filing a petition or application with the USCIS, please send us an email at info@flynnhodkinson.com.