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Adjustment of Status Cases Being Denied Without RFE

| Jun 16, 2020 | Common Immigration Questions and Problems

According to the American Immigration Lawyers Association, a spate of anecdotal reports have come out that the National Benefits Center (or NBC) has been summarily denying adjustment of status cases without affording applicants any opportunity to rectify the alleged deficiency. Traditionally, USCIS would issue Requests for Evidence or Notices of Intent to Deny if missing documentation or problematic issues were discovered during an initial review of the file. This new practice aligns with recent enforcement changes implemented in 2018 granting adjudicators much more authority to deny cases.

Hopefully these reports are isolated incidents and not symptomatic of a disturbing trend. When the new RFE/NOID policy changes came out in 2018, the legal community was understandably concerned that cases would be arbitrarily rejected en masse. Fortunately, at least in our experience, that did not happen. Adjudicators seemed to adhere to the new guidelines. Only cases with glaring inconsistencies were supposed to be rejected. The 2018 policy states: “consistent with USCIS practice and regulations, adjudicators will continue issuing statutory denials, when appropriate, without issuing an RFE or a NOID first. This would include any filing in which the applicant, petitioner, or requester has no legal basis for the benefit/request sought, or submits a request for a benefit or relief under a program that has been terminated.” As examples, the 2018 memo lists these examples as illustrative:

· Waiver applications that require a showing of extreme hardship to a qualifying relative, but the applicant is claiming extreme hardship to someone else and there is no evidence of any qualifying relative;

· Family based visa petitions filed for family members under categories that are not authorized by statute

· Waiver applications submitted with little to no supporting evidence

· 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-ie., no I-864 submitted with I-485.

Since then, the landscape has changed, especially with the advent of the new public charge rule and Form I-944 which, besides comprising an intimidating number of pages, requires an inordinate number of supporting documents. It is possible that some cases are being denied because some supporting documentation is alleged to be missing. If so, this is a major problem and defect in the adjudication process. The 2018 policy was meant to eliminate cases which were characterized by egregious deficiencies. Missing supporting documentation, while important, do not go to the substantive nature of a petition, and should be addressed through an RFE. Additionally, a lot of changes are very recent and adjudicators may not be properly trained to distinguish or understand what is and what is not required. Issuing denial notices have extremely drastic consequences, especially for applicants who may be or have since fallen out of status since their adjustment applications were filed. Under USCIS current Notice to Appear Policy, applicants who are out of status at the time their adjustment of status applications are denied are to be referred to Immigration Court for removal proceedings.

Given the stakes, it is critical to ensure that your immigration case is filed properly with all supporting documentation. This is not the time to play games or take risks with your status. If you have any questions regarding green card eligibility or need help in filing your case, please contact our office.

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