USCIS officials to get discretionary powers to reject incomplete applications, without requests for information
Ritu Jha
Frivolous filings are why the US Citizenship and Immigration Services (USCIS) has to take a strong decision about the recent policy memorandum (PM) that gives USCIS adjudicators discretionary power to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).
This applies to all applications, petitions, and requests, starting September 11, except for Deferred Action for Childhood Arrivals (DACA) adjudications received after that date.
“People are filing applications that are incomplete because they just want to get in the line. And gather the information later on. That takes longer for everybody. They are not filing as required,” Sharon Rummery, USCIS public affairs officer told indica.
Rummery said, “There still be RFEs, but at the discretion of the officer.”
“This [policy memorandum] is to discourage people filing frivolous or incomplete filing. It encourages them to be diligent in collecting and submitting the required evidence,” Rummery said.
She did not describe who the USCIS is targeting or what kind of incomplete petitions are coming in large numbers.
Asked if she was talking about I-129 petitions, which have received over hundred and thousand RFE’s she said could be or other petitions, N-400, Application for Naturalization though did not give the clear picture.
A story published by indica (January 15) reports USCIS shows that during fiscal years 2015 to 2018, USCIS has sent out a total 300,762 RFE’s for 1,213, 488 applications received.
In a press release, USCIS Director L Francis Cissna said, “For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits.”
Cissna said, “Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”
But attorney Shah Peerally calls the decision “worrisome,” saying it changes all perspective.
“It is punitive and unfair,” he said.
Asked if those on working visas would be affected, Peerally said, “Yes, mostly H1Bs. Almost 100 percent RFE’s are in H1B cases.” And once rejected, if the applicants don’t leave within the stipulated time they could be deported, he said.
Peerally said the upcoming decision could impact almost one-third of the Asian population and negatively affect the housing and credit card industries
Immigration attorney Michael E Piston told indica, “People are scared because this notice indicates that USCIS may start denying requests for benefits outright in situations where they are currently issuing requests for evidence or notices of intent to deny.”
Piston is the attorney of Srinivasa Narasimhalu, a software engineer whose H-1B visa extension was rejected. Piston filed a civil action on the computer professional’s behalf against the USCIS.
“It’s very difficult to guess before filing one’s request just what documents the examiner will consider necessary to prove one’s case,” Piston said. “In the past as long as practitioners filed a complete signed form and a check, they could generally rely upon USCIS to issue an RFE for whatever else might be considered missing. In fact, it is not at all unusual for people without representation to simply file a form and a fee, thinking that’s all that is needed.”
If the USCIS limits RFE-less denials to applications that lack evidence clearly required by the regulations or instructions, then at least experienced practitioners will understand what documents have to be filed. Else, this rule will simply serve as another trap for unwary or careless applicants, Piston said.
According to him, if examiners start issuing denials for lack of documentation that goes beyond what is required in the instructions there could be a chaos, and probably most petitions could be denied for lack of sufficient documentation. In that case, a motion to reopen and appeal to the administrative appeals office (AAO) will then take the role RFE responses do now.
But since clients generally become unlawfully present once a denial has been issued, it may not even be safe for them to stay in the US while a motion to reopen or appeal to the AAO is adjudicated, since either of these can easily take over 180 days from the date of the denial, he said, pointing out that anyone who is unlawfully present in the US and then departs is barred re-entry for three years.
He said rejected applicants may have to run the risk of subjecting themselves to a three- or ten-year bar just to get a fair decision.
Besides, even if they could stay they are not authorized to work while a motion to reopen or an appeal is pending (as they usually are when requesting an extension employment authorization).
Such people are subject to being placed in removal proceedings which can involve a month or more of detention while waiting for a hearing before an immigration judge so that bond can be posted.
For more information on immigration issue, visit the below links of Attorney Shah Peerally:
