The U.S. Citizenship and Immigration Services issued a new Guidance that will make it easier for the government to summarily deny petitions and applications. The Guidance will take effect on September 11.

The Guidance will allow adjudicators “to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility.” The intent is to give adjudicators more discretion to deny a petition or application without requesting more information first. This new Guidance appears consistent with the agency’s more recent stringent standards for approval of petitions and applications.

The opportunity to submit additional evidence requested by an RFE or NOID has long been a practice of the USCIS and its predecessor, the Immigration and Naturalization Service. In 2013, the Obama Administration issued a Guidance that allowed adjudicators to deny Petitions or Applications without the issuance of an RFE or NOID where “there was ‘no possibility’ that the deficiency could be cured by the submission of additional evidence.” However, the new Guidance that will take effect in September states that this “no possibility” standard limited adjudicators’ discretion too much – in essence, to cases where there was no statutory basis for the benefit requested (“where a nonexistent benefit is requested”). The new Guidance is much broader, and will allow for summary denials even in cases where insufficient initial evidence is presented.

The new Guidance states as follows: “If all required initial evidence is not submitted with the benefit request, USCIS in its discretion may deny the benefit request for failure to establish eligibility based on lack of required initial evidence.”

Cases where a nonexistent benefit is requested should, of course, be denied. However, “insufficient evidence” (as the new Guidance recognizes) can include submitting the right evidence but not “enough” of it (a subjective standard), or omitting a required piece of evidence. Even applying the Obama Administration standard, the USCIS under the Trump Administration has been issuing more RFEs claiming that insufficient evidence has been submitted. The new Guidance will give adjudicators discretion to simply deny the petitions or applications without issuing RFEs or NOIDs.

What are the consequences of this new Guidance?

First, employers should expect the number of denials to increase.

Second, in the event of a denial, a greater number of employees on work visas or individuals (for example, people on student visas) will be placed in removal proceedings as a result of a June 28, 2018 Updated Guidance of USCIS to initiate removal proceedings “where, upon issuance of an unfavorable decision on an application, petition or benefit request, the alien is not lawfully present in the United States.”

Third, because of these consequences, employer petitioners and applicants must take extra care to document (and perhaps over-document) all of the required elements of their filings. For example, in general, employers should no longer file minimally-supported H-1B petitions, with the thought that more evidence can be submitted if an RFE is issued. If a deficient petition is filed on an emergency basis, the petitioner or applicant should understand that denial may very well be the result.

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