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 ?