Integrity Legal

In what may be one of the most significant developments in immigration practice in quite some time, it recently came to this blogger’s attention via a policy memorandum from the United States Citizenship and Immigration Service (USCIS) that the USCIS is radically changing their policies with respect to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). For those unaware, an RFE is issued in a case where the adjudicating officer of an immigration petition is not fully satisfied that the beneficiary and/or the petitioner meet the legal requirements. An NOID is similar and may allow the petitioner to rectify a petition notwithstanding prior inadequacy.

That being stated, the procedures regarding issuance of RFEs and NOIDs have been fundamentally altered pursuant to policy memorandum PM-602-0163 dated July 13, 2018 entitled “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM)Chapter 10.5(a), Chapter 10.5(b)” The provisions of this memo dictate new guidelines for adjudicators of immigration petitions. To quote directly from the USCIS website:

The 2013 PM addressed policies for the issuance of RFEs and NOIDs when the evidence submitted at the time of filing did not establish eligibility. In practice, the 2013 PM limited denials without RFEs or NOIDs to statutory denials by providing that RFEs should be issued unless there was “no possibility” of approval. This “no possibility” policy limited the application of an adjudicator’s discretion.

The policy implemented in this guidance restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate.

Although the ramifications may not be immediately apparent, especially to those who do not deal with the immigration apparatus on a regular basis, this change in policy is rather profound. The prior doctrine which required that an adjudicator denying a petition without first issuing an RFE or NOID show that there was “no possibility” that a case could receive approval provided a great deal of limitation upon an adjudicator’s ability to unilaterally deny an immigration petition. The removal of this policy encumbrance allows future adjudicators a great deal more discretion in issuing immediate petition denials. The sources noted above go on to note that the primary reason for the change in policy stems from the desire to discourage so-called “placeholder” or “frivolous” filings (which under certain circumstances is laudable as such cases can unnecessarily clog up the immigration processing channels), but there could be significant ramifications for cases which would not necessarily fit those descriptions.

For example, in K-1 visa petitions it is now more likely that more denials will be issued in the future in such cases where it has not been incontrovertibly proven that the couple has in fact met in person within 2 years of filing for the benefit (the so-called Meeting Requirement). Furthermore, in cases involving petitioning for a fiance visa it seems logical to infer that future adjudications may result in a  denial where the petitioner has failed to demonstrate that both parties maintain the requisite intention to marry in the USA.

It is difficult to speculate at this time exactly how this change in policy will be implemented and the full consequences associated therewith. However, two things are clear: 1) visa petitions are likely to be more susceptible to denial moving forward and 2) those thinking of undertaking a do-it-yourself approach to petitioning for a fiancee or marriage visa are well advised to seriously consider the negative aspects of failing to seek professional legal assistance in immigration matters as failure to fully delineate a case clearly and concisely in the initial petition for immigration benefits could result in a denial and thereby a loss of time and resources.

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