Last Friday, USCIS quietly released another policy memorandum that sharply reverses previous agency guidance on the issuance of Requests for Evidence (RFE). Numbered PM-602-0163, the update is yet another demarche in realizing the Administration’s “zero tolerance” on immigration-but this time, on the interior front. Under prior practice, USCIS officers were instructed to issue RFEs in situations where applications were deemed deficient or lacked required evidence. Only where there was “no possibility” of approval were adjudicators authorized to summarily deny the application. The new memorandum rescinds this practice in its entirety. Effective September 11, 2018, officers are now vested with full discretion to deny applications, petitions, and requests received after that date without first issuing a Request for Evidence or Notice of Intent to Deny. (DACA applications, fortunately, are currently exempt from this new policy due to pending litigation.) According to the memo, the change is not “intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirement.” However, given that a sizeable segment of the population attempt to file cases on their own, this is exactly what will happen to those who do not have the benefit of experienced immigration counsel. Not only will defective applications be given short shrift, but costly filing fees may be unrecoverable. This is not even taking into account situations where an adjudicator makes an error and wrongly denies a case. In that event, the applicant’s only remedy may be an appeal or motion to reopen/reconsider, a highly technical and expensive process.
Practically speaking, nearly all types of petitions and applications filed with USCIS are affected, including I-485 applications for adjustment of status; I-130 petitions for alien relatives; I-765 applications for work permits; and I-601 Waivers, just to name a few. Where there is no legal basis for a filing, USCIS will continue its practice of issuing statutory denials. An example referenced in the memo specifically uses waivers. If a submission does not include evidence of extreme hardship to a qualifying relative (when it is required), the case will be denied without affording the applicant a chance to address the deficiency. The more troubling guidance, however, pertains to Denials Based on Lack of Sufficient Initial Evidence. Officers will now be authorized to deny cases in which the initial evidence is deemed lacking or insufficient. The memo references two examples:
· Waiver applications submitted with little to no supporting evidence; or
· Cases where the regulations, the statute, or form instructions require the submission of an official document or other form or evidence establishing eligibility at the time of filing and there is no submission. For example, family-based or employment-based categories where an Affidavit of Support (Form I-864), if required, was not submitted with the Application to Register Permanent Residence or Adjust Status (Form I-485).
The potential problem with this new policy is that there seems to be little in the way of standards that officers are expected to abide by. Adjudicators seem to have unfettered discretion in determining what is sufficient. For an I-601 or I-601A application, just what constitutes “little to no supporting evidence?” Different subjective standards may result in droves of unjustified denials. Even with respect to the second example, which appears more straightforward, there is major room for error. For example, what if an adjudicator is unfamiliar with the intricacies of the Affidavit of Support and wrongly determines that a petitioner does not meet the guidelines? This is more common than one may think.
In sum, this new memo, coupled with the agency’s previous memo on the issuance of Notices to Appear, conflates the boundaries and respective missions of USCIS and ICE. Undocumented and out-of-status individuals are essentially faced with an “all or nothing” proposition now when applying for status or some sort of benefit from USCIS. If an application is denied-which may happen more frequently under this new policy-an individual may now be placed into removal proceedings as a matter of course.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.