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New Immigration Policy on RFE/NOID: Why You Need an Immigration Attorney More Now than Ever

US Border Patrol Agent Stamping a Passport

On July 13, 2018, the United States Citizenship and Immigration Services (USCIS) issued a new policy memorandum. Although this memorandum didn't receive much attention in the news, given the other stories going on on the world stage that week, it will have a serious affect on those filing applications and petitions with USCIS. The bottom line is that everyone from asylum seekers to petitioners for H1B visas will experience the impact of this policy change, with very limited exceptions.

What Was the Old Policy?

In 2013, a policy memo titled "Requests for Evidence and Notices of Intent to Deny" gave guidance to USCIS adjudicators (decision makers) reviewing cases. This memo essentially said that if a petition was filed and the adjudicator found that there was a deficiency or that the filing was missing needed proof, the adjudicator should issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) regarding the petition.

Adjudicators could outright deny petitions, but only if there was "no possibility" that the application could be approved. In practice, this resulted in adjudicators issuing RFE's/NOIDs in most cases, because there was a chance that the petitioner would be able to fix the problem with their petition. In other words, adjudicators did not have the discretion to simply deny a petition if there was a chance the deficiency could be cured.

What is the New Policy?

The July, 13, 2018 memo gives USCIS adjudicators much more discretion—in fact, full discretion—to deny petitions outright, without the need to issue RFE/NOID. Even if it is clear that the missing information could easily be supplied if the petitioner received a request for it, USCIS adjudicators are not required to notify applicants or petitioners of the deficiency before denying the application or petition. Adjudicators have authority to validate evidence and documents submitted with an application or petition through use of USCIS databases and files and those of other U.S. government agencies, but are no longer required to issue an RFE/NOID.

The new policy memo takes effect for all petitions, applications and requests filed with USCIS on or after September 11, 2018. However, according to USCIS' Twitter account, "Due to preliminary injunctions, USCIS will continue to operate the Deferred Action for Childhood Arrivals policy on the same terms and conditions in place prior to September 3, 2017." Also, the policy guidance set forth in the memo does not apply to cases that are filed before September 11, 2018, even if they are pending or in process at that time. 

What is the Reason for the Policy Change?

According to USCIS, this policy memo was issued in order to prevent individuals and employers from filing petitions that they know to be incomplete or frivolous as a placeholder, with the knowledge that they can cure any deficiencies later. The agency reports that such actions waste USCIS resources and delay processing times for legitimate applications and petitions. USCIS states that the new policy memo is not intended to punish good-faith applicants or to penalize honest mistakes made by applicants or employers during the filing process.

What Does this Policy Guidance Mean for Me?

What this policy memo means, in a nutshell, is that there is much more incentive to make sure an application, petition, or request that you file with USCIS is correct and complete the first time—because you may not get a second chance. This is why you need an immigration attorney. There is too much at stake to risk an innocent error. While USCIS adjudicators may still issue RFE/NOID, they are no longer required to do so by official policy.

If you have an experienced immigration attorney, he or she will have helped numerous clients in the past with applications or petitions just like yours. Therefore, your attorney will be in a much better position to advise you as to additional evidence or documentation you need to provide, and to review your petition to make sure that it is complete and accurate. You may encounter services that offer to help you in filling out immigration paperwork, but there are many unreputable services out there. Even those with good intentions may not have the up-to-date knowledge of the law that is necessary to ensure that your petition is accepted.

While there is never a guarantee, working with an immigration attorney with current knowledge of immigration law and policy is the best way to make sure your petition is not rejected for an avoidable reason. We invite you to contact our law office with any questions you may have on the new policy memo and what it means for you.

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Categories: Immigration Law