At the same time that immigration judges are having their discretion restricted,[i] USCIS adjudicators are having their discretion expanded.[ii] The governing regulations explicitly provide an adjudicator the discretion to deny a case outright if the record does not establish eligibility for the immigration benefit, or issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) to further develop the record.[iii] However, the previous policy directed that an adjudicator should issue an RFE unless there was “no possibility” that the deficiency could be cured by the submission of additional evidence, thereby limiting the discretion of adjudicators to an extent.[iv]
The new USCIS policy has abandoned that limitation and restored full discretion to USCIS adjudicators. “This policy is intended to discourage frivolous or substantially incomplete filings used as ‘placeholder’ filings and encourage [those filing] to be diligent in collecting and submitted required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.”[v] The policy memo cites some possibilities for an automatic denial: waiver cases where the qualifying relative is not properly identified, or submitted with little to no evidence; filings for family members that may not fit in a preference category; filings that do not submit all required documents as provided in the statute, regulations, or form instructions (i.e., a green card application with no I-864 included).[vi] The instructions that accompany each form usually include a section on required evidence.
The policy has not yet been in place long enough to fully appreciate the consequences. Previously, USCIS would often reject a deficient filing, providing three distinct advantages: return of the filing fees, a clear statement of the deficiency, and a chance to re-file without a denial in their immigration record. To my understanding, USCIS may still reject deficient filings as a discretionary matter. But the new policy also returns discretion to USCIS to accept the filing, cash the fees, and then summarily deny the application as deficient leaving little opportunity to cure the defect without re-paying the fees. (Filing fees are a substantial part of USCIS’ budget.) Once data is collected on the practical implementation of this policy, hopefully we will be able to see if the rejection rates are declining proportionately to an increase in summary denials, and whether cases filed pro se are more likely or less likely to receive a courtesy rejection notice.
Ryan Morgan Knight is an associate attorney with Haynes Novick Immigration in Washington, DC, focusing his practice on a broad spectrum of employment-based nonimmigrant and immigrant visas. His previous experience includes removal defense, asylum, family-based petitions, investment visas, consular processing, and administrative/federal appeals.
[i] See, e.g., Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018); Matter of L-A-B-R-, 27 I&N Dec. 245 (A.G. 2018).
[ii] USCIS PM-602-0163: Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), July 13, 2018.
[iii] 8 C.F.R. § 103.2(b)(8).
[iv] USCIS PM-602-0085: Requests for Evidence and Notices of Intent to Deny, June 3, 2013.
[v] USCIS PM-602-0163: Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), page 2, July 13, 2018.
[vi] Id., page 3.