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发帖数: 6601 | 1 New USCIS Policy Guidance Gives Adjudicators Full Discretion to Deny Without
First Issuing an RFE or a NOID
By ImmigrationGirl July 13, 2018
Effective September 11, 2018, a new Policy Memorandum from USCIS allows
immigration filings to be denied without first issuing a Request for
Evidence or Notice of Intent to Deny. The “good” news is that this will
not be applied retroactively, meaning it will only be applied to cases filed
after September 11, 2018.
The memo rescinds a prior memo issued in 2013 which had required RFEs to be
issued unless there was no possibility that additional documents or
information could cure a deficiency.
Instead, new filings lacking required initial evidence can be denied without
first sending a Request for Evidence.
According to the memo, this policy is “intended 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. It is not intended to penalize
filers for innocent mistakes or misunderstandings of evidentiary
requirements.”
For cases filed after September 11, 2018, if 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.
Cases can be denied without RFE where the regulations, the statute, or form
instructions require the submission of particular evidence establishing
eligibility at the time of filing and there is no submission of the required
evidence.
Furthermore, apart from RFEs, officers have the discretion to validate
assertions or corroborate evidence and information by consulting USCIS or
other governmental files, systems, and databases, or by obtaining publicly
available information that is readily accessible. For example, an officer
may, in the exercise of discretion, verify information relating to a
petitioner’s corporate
structure by consulting a publicly available state business website. As
another example, an officer may attempt to corroborate evidence relating to
an individual’s history of nonimmigrant stays in the United States by
searching a nonpublic, U.S. government database.
What does this mean for filings beginning September 11th? Be sure that all
required evidence is submitted with the filing. Employers should ensure that
all necessary documents for approval are submitted with the application and
should not expect a later opportunity to submit them by waiting for an RFE.
If you are looking for a silver lining in this memo, maybe, just maybe it
will help reduce the long processing times for various employment-based
applications because there won’t be as much back and forth waiting for
responses to RFEs.
This will certainly make FY2020 H-1B cap filing season more interesting&#
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