Recent USCIS Policy Memos on RFEs/NOIDs & Notices to Appear (NTAs) to Impact a Wide Range of Visa Holders

POLICY UPDATE

Implications of USCIS Policy Memos concerning (1) Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens and (2) Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)

Two recent policy memoranda issued by the U.S. Citizenship and Immigration Services (USCIS) will have significant impact upon a wide range of individuals in various visa categories.

Effective June 28, 2018, USCIS has expanded the circumstances in which a Notice to Appear (“NTA”) may be issued. An NTA is a document that signals the initiation of removal proceedings against an individual. This will have a significant impact upon applicants for an extension of status, change of status or adjustment of status. Under current policy, for example, change of status or extension applicants can remain in the United States and continue working once an extension is filed, for up to 240 days. Pursuant to the new policy, if that extension or change of status is ultimately denied, and the underlying status has expired, an NTA may be issued.

Effective September 11, 2018, USCIS grants officers greater discretion to deny a case, without first issuing a Request for Evidence (“RFE”) or Notice of Intent to Deny (“NOID”) in certain instances where “all required initial evidence is not submitted with the benefit request”. The stated aim of this policy change by USCIS is “to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence”. Examples of instances in which USCIS may deny cases before first issuing an RFE or NOID include:

  • “Waiver applications submitted with little to no supporting evidence”; or
  • “Cases where the regulations, the statute, or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no such submission”.

This change in policy may facilitate officers issuing immediate denials in a range of cases, including, but not limited to, where there are salary discrepancies between the Labor Condition Application (“LCA”) and other documentation contained in the petition for wage-based petitions, where a required academic evaluation is missing or incomplete, or where there is no evidence provided for an individual’s maintenance of status.

The cumulative effect of these policy memoranda is that failure to timely file what individual USCIS officers consider sufficient evidence in a broad range of cases could have serious consequences for individuals’ immigration status.

Broadening the instances in which an NTA may be issued make it extremely important to file extension of status and change of status petitions well in advance of an individual’s current status expiring. Extensions can typically be filed up to 180 days prior to the end of an applicant’s current status. Due to the processing delays presently seen with USCIS, employers may also wish to use USCIS’s Premium Processing Service, which guarantees a response within fifteen (15) calendar days from time of filing.

Granting officers wide-latitude to deny a case without first issuing an RFE or a NOID necessitates a wholistic and long-term legal strategy to ensure an employee’s work authorization can be maintained and extended to the extent allowable under the law.  USCIS’ recent, wholesale change of a reasonable, decade-long policy to what is now broad discretion given to USCIS personnel makes communication between attorney and client even more crucial throughout all stages of the process.  It is yet unclear to what extent USCIS will exercise this discretion, but prudent planning will serve to counteract as much as possible the most deleterious effects of the policy shift.

Diligence has always been of the utmost importance when filing applications with all the government agencies involved in the implementation and interpretation of U.S. immigration laws, but it is now especially important when failure to meet documentary requirements is paired with instances where an individual’s underlying status is soon expiring. Such a scenario could ultimately involve a USCIS denial, followed by a Notice to Appear. It will always be the goal of BMK to avoid this potential outcome and work with employers, employees, and individual applicants to review all cases with the utmost care.

Given the complexity of the visa process and this continuing trend toward more stringent penalties, it may be in the best interest of applicants and affected employers to enlist the help of an experienced immigration law firm.

References:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf

https://www.uscis.gov/news/news-releases/uscis-updates-notice-appear-policy-guidance-support-dhs-enforcement-priorities

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf

https://www.uscis.gov/news/news-releases/uscis-updates-policy-guidance-certain-requests-evidence-and-notices-intent-deny