Another change in policy and another reason to hire an immigration lawyer (or be glad you already did)!
For as long as I have been in Immigration law firms I’ve been asked the question, “But why should I hire an immigration lawyer?” The answer is never simple but neither is the processing in U.S. immigration. As with a lot of things, there are personal, factual, and other variations and reasons why it would be worthwhile to have an experienced attorney assisting you in the navigation of the U.S. immigration system.
Under the current administration, the changes in policy, processes, and procedure have been the only constant and USCIS has issued yet another change in U.S. immigration policy. Beginning on September 11, 2018, the USCIS put the new policy into action which had been previously announced on July 13, 2018. See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf
This current policy change, however, is more disturbing than some of the prior. It will have ramifications on filings made by individuals and employers who make requests of USCIS. Most importantly, it will leave some without recourse. The old policy outlined the steps an adjudicator should follow when presented with a petition or application that was potentially incomplete in form or evidence. Adjudicators were expected to issue a Request for Evidence (RFE) and ask the petitioner or applicant to supplement their petition or application. The prior policy “stated that an adjudicator should issue an RFE unless there was “no possibility” that the deficiency could be cured by submission of additional evidence. The effect of the “no possibility” policy was that only statutory denials (such as a denial where a nonexistent benefit is requested) would be issued without an RFE or a NOID.”
Under the new guidance, adjudicators have been directed to reject or outright deny petitions and applications which they deem are incomplete. The new policy finds that adjudicator’s discretion should not be “limited” as it was under the old policy. In fact, the policy states “[i]f all required initial evidence is not submitted with the benefit request, USCIS in its discretion may deny the benefit request for failure to establish eligibility based on lack of required initial evidence.” While the policy does acknowledge that adjudicators must review, follow policy and operating procedures and that there are instances where the discretion is restricted, it also states that “[c]ases 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” the request may be outright denied.
Navigating what documents and forms must be included is not as simple as USCIS’s policy makes it appear. There are no currently available checklists provided by the Service that indicates the information and minimum documentation that must be submitted. Further, because it is the petitioner or applicant’s burden to establish eligibility and provide the required documents and information, it is of extreme importance that an individual or business know that it is in compliance upon the first submission.
A petition or application which is submitted, receipted, and then deemed insufficient to carry the burden of demonstrating eligibility, will be denied. The Adjudicator’s Field Manual Chapter 10.5(a) has been updated to say that “adjudicators may, but are not required to, issue RFEs or NOIDs, and they retain the discretion to deny a request for ineligibility without issuing an RFE or NOID.” It further states that “a filing that lacks initial evidence…may be denied without issuing an RFE or NOID.” Thus, the petitioner or applicant may lose not only the filing fees submitted with the original petition or application but also the priority date and/or the eligibility to change status (because the original filing was timely and now the individual is out of status). In a footnote, USCIS further provides that NOIDs are not required and do “not apply to filing deficiencies such as signatures”, which are not governed by the same law or policy.
What does this all mean? It means that an already complex, complicated, and difficult system has become even more so. Today, if I am asked should I hire an immigration attorney? I can much more easily say “You already know the answer. It’s because this is extremely important, has life-altering consequences, and has to be done right the first time.”
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