On January 31, 2018, 2 months after proposing the merit-based rule for the H-1b program,
On July 13, 2018, the USCIS issued a policy memorandum which revises guidance on USCIS adjudications concerning adjudicators’ discretion to deny requests, applications, or petitions without issuing a Notice of Intent to Deny (NOID) or a Request for Evidence first.
This policy memorandum is to go into effect on September 11, 2018. Apart from the Deferred Action for Childhood Arrivals (DACA) adjudications, this updated guidance will apply to all requests, petitions and applications when in effect.
This new policy guidance is to reverse the current policy (issued in 2013) that requires that a Request for Evidence be issued unless there is no possibility that a deficiency in a filing can be resolved. As such, the current policy limits USCIS adjudicator’s authority to deny a request, petition or application without first giving the requestor, petitioner, or applicant the opportunity to provide more evidence to support his/her case.
The new policy will restore USCIS adjudicators the full authority to deny requests, petitions and application without issuing a Notice of Intent to Deny (NOID) or a Request for Evidence, when necessary (that is if the requestor, petitioner, or applicant does not have the legal basis for the benefit requested). According to USCIS Director L. Francis Cissna, the new policy will deter skeletal and frivolous requests, applications, or petitions used to game the system, making sure resources are not wasted, and in the long run, the policy will better the USCIS’s capacity to resourcefully and objectively adjudicate requests.
As provided by the USCIS, two examples of filings that can be denied without issuing a Notice of Intent to Deny (NOID) or a Request for Evidence first include:
1. A waiver application that is filled with little or no documentary evidence.
2. A filling that is required ( by form instructions,statute or regulation ) to has been submitted with required forms or official document, such as an application to adjust status or an application to Register Permanent Residence submitted without the requisite affidavit of support.
Since these are the only two examples provided by the USCIS so far, it is uncertain the extent to which adjudicators will apply the new discretion offered them by the new policy memo. According to USCIS, this new PM (policy memorandum) is meant to suppress frivolous, meritless, or substantively incomplete filings and claims, which are used as “placeholder” filings, and to urge requestors, petitioners and applicants to be thorough when providing required evidence.
The chapters of the USCIS Adjudicator’s Field Manual that this new policy memo revised consist of the Chapters 10.5(a) and 10.5(b). The new PM also has an “additional considerations” section.
1. U.S. Citizenship and Immigration Services. (2018). USCIS Updates Policy Guidance for Certain Requests for Evidence and Notices of Intent to Deny. [ONLINE]
2. U.S. Citizenship and Immigration Services. (2018). Policy Memorandum (PM-602-0163). SUBJECT: Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b). [ONLINE]