USCIS announced a policy memo on July 13th giving more power to the USCIS’ adjudicators of various kinds of petitions. The new policy memorandum basically cancels/ revokes previous USCIS policy on issuance of Request for Evidence (RFE) and Notice of Intent to Deny (NOID) from 2013. Let’s look at details.
What was the previous 2013 USCIS Policy memo on Issuing RFE / NOID ?
In the past, as per 2013 policy memo with title “Requests for Evidence and Notices of Intent to Deny”, the USCIS adjudicator, when they are reviewing a case to make a decision, had to issue RFE/ NOID for a petition, if they find a deficiency/ missing proof for something related to the petition filed. They could deny a petition directly, ONLY if there was no possibility that submitting additional documents will not cure that deficiency with the petition filed. Basically, in most cases they were mandated to issue RFE/ NOID and there was no full power to deny directly based on their discretion.
What is the New 2018 Policy Memo on Denying Petitions without Giving RFE / NOID ?
The new policy memo from 2018 states that USCIS adjudicator has full discretion to deny a petition without issuing RFE/ NOID for a petition. USCIS adjudicator can deny any new petition filed, when initial required evidence/documents for the petition/ case are missing or does not establish eligibility. USCIS adjudicator has full discretion to validate all the evidence/ documents submitted by checking/consulting with USCIS systems or any other government agency files, systems and databases. Also, USCIS officer can check non-public US Government databases as well to get non-immigrant stays, info, etc. Overall, USCIS officers have full discretion to check for missing evidence that are required for the case and also validate the submitted evidence using all of the systems for their authenticity and can issue denials directly based on their discretion without issuing an RFE/NOID.
Why is USCIS doing this policy change ?
USCIS claims that this policy memo is targeted to avoid people/employers from filing frivolous/ substantially incomplete applications just as a placeholder and delay the overall processing times as it wastes USCIS resources’ time. It is not intended to penalize anyone filing it genuinely or any innocent mistakes committed by employers during filing.
When does this New Policy Memo for RFE/ NOID take effect ?
This policy memo will be effective for all petitions/cases filed with USCIS after September 11th, 2018.
Does this policy memo apply to pending cases filed before Sep 11th that are in process ?
No, this new policy guidance applies to cases filed only after September 11th, 2018. If your case was filed before Sept 11th and it is pending/processing goes after Sept 11th, this policy does not apply to such cases, even if you go for premium processing and upgrade your case.
Does this new 2018 policy on RFE/ NOID impact H1B petitions filings ? If so, How ?
Yes, it applies to all kinds of petitions/applications filed with USCIS, including H1B Petitions. If you are filing H1B petition, you need to make sure all the required initial evidence has to submitted with full caution. Employers must make sure all the required documents for getting approval are submitted at the time of filing. Employers cannot just file an incomplete application with missing key documents/ evidence hoping for RFE to submit the rest of the documents later…it will not work after September 11th, 2018. This will very likely have an impact on H1B FY 2020 season.
Does new policy memo apply for H1B Transfers, extensions ?
Yes, the new policy applies for all kinds of H1B petitions.
What is an example of required evidence for H1B that if missing can cause denial ?
Just couple of examples, not a complete list.
- Specialty occupation: If you are applying for H1B under speciality occupation, you must submit evidence for speciality occupation. If not, then you can get a denial.
- Employer-Employee Relationship : You must submit evidence that employer-employee relationship is maintained as required by Neufeld memo, if no such documents, then you can expect denial.
What do you think of this new memo ? Anything that I missed ?
References :
After being picked in the lottery My H1B petition was returned recently without any RFE? My employer/lawyer doesn’t know why it was returned & as per the employer all documents were submitted correctly. What are the options available with me now? How can we know what went wrong in the subnission?
Got picked in lottery. Waiting from 20 days for update. Still the status is “Recieved”. Tension.. Tension. ..
You have a long way to go, it can take anywhere from few weeks to few months, if not in premium processing. Take it easy, dont worry too much
My amendment got filed on April 18 .I still not get any decision.people who filed after me got denial.will my amendment also treated as the same?
Same situation for me also, I am from Infosys.
What if someone has received RFE on 2018 application before 11th September and is responding RFE with documents after 11th September. Will that case also considered to be followed by this rule?
It should technically be considered as Premium, but USCIS has full discretion to refund the money, if they cannot honor the 15 day timeline.
Someone told me this policy has been deferred to a later time. I am not able to find any notifications as such. Can someone please clarify me if this still stands from Sep 11th or posponed?
This one is not deferred, the NTA policy is the one that is deferred.
I have my H1B VISA expiring 05-Aug-2018. My employer is filing extension for the same. While processiing I got my spouse’s H4 I 539 from my attorney for her signature to file extension for her along with me. There I noticed that the end date reuqested in
I 539 under section ‘Part 3. Processing Information’ – 1a – I request that my current status be extended till – 21-Aug-2020. while around 2 years from my current VISA date of expiry.
However, while giving documents to attorney I have mentioned everywhere the request for extension for 3 years that is till Aug 2021.
As per current validity 05-Aug-2018 as I mentioned I am completing 10 months of my 6 years of H1B period.
Queries-
1. Does the USCIS gives extended validay date greater than requested in I 129 or I 539. Provided in all the documents while submitting the application I have mentioned extension of 3 years in place of 2 years (mentioned in I 539 for my spouse)
2. Does the USCIS consider reuqested end date in application form as more priority comapre to dates mentioned in supporting documents like contract end date (in my case it is greater than mentioned by my attornery) , client letter.
Please help to clarify
Will this policy affect visa stamping also?
Can i change employer , after RFE or deniel???
Yeah. By the way, with transfer petition you can file petition for your green card – this is hidden option. But that’s true!
Hi. My petition got picked up during lottery process. My current petition status is Case Recipt Received. Can I assume that my petition will have more chance for getting approved without RFE process?
everything depends on the case, your position and how it all fit together, cannot guess…
My H1B extension is filed on Jun 15 (normal processing) and my I94 expired on 8 Jul 2018. Am I at risk here (became of Jul 5 USCIS policy change)? What should I do?
you are on the safe side .. because you have filled your H1-B extension before expiration of I-94, exactly same thing happened to me. so nothing to worry
Any Non AD from India received approval?
Talk something relevant to the subject.
If your case was filed before Sept 11th and it is pending/processing goes after Sept 11th, this policy does not apply to such cases, even if you go for premium processing and upgrade your case.
If we upgrade for premium process after September 10, then this rule will apply ?
If your case was filed before Sept 11th and it is pending/processing goes after Sept 11th, this policy does not apply to such cases, even if you go for premium processing and upgrade your case.
will this affect on Green Card Labor petitions as well?
Yes, everything filed with USCIS
but my Labor has filed already on June 30th. so this change should not affect me, correct?
Yes.