This memo, issued on July 13, 2018, gives the USCIS discretion to deny the application – without first giving the applicant an RFE or NOID. If an RFE is issued, the USCIS can issue another/secondary RFE.
The effective date of the Trump administration memo is September 11, 2018. The memo applies to all applications (such as I-485) applications – and other petitions and requests.
The main provisions of the policy memorandum are:
- Prior standard. A prior 2013 memo provided that an RFE should be sent, “when the facts and the law warrant.” Generally, an RFE should issues unless it was clear (no possibility) that the defects couldn’t be cured. This means most applications that were defective would result in an RFE – unless there was a statutory reason for the denial.
- Full discretion. The July 2018 PM (effective September 2018) gives the USCIS adjudicator full discretion to decide the application on the submitted record. The burden is on the applicant to establish eligibility – to submit the correct record the first time he/she applies.
- Reason for the stricter change. The July memo states that the reason for the new policy is to “discourage frivolous or substantially incomplete filings used as placeholder filings and to encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. The purpose of this policy memo is NOT to penalize filers for innocent mistakes or misunderstandings of the evidence required to establish eligibility.” The memo states the new policy “will allow USCIS to focus resources on evaluating cases rather than on tracking down missing evidence.”
- Exempt applications/petitions. The new Trump policy does not apply to applications, petitions, and requests submitted before September 11, 2018. The 2018 policy memo also doesn’t affect certain Deferred Action for Childhood Arrivals (DACA) cases – and certain other cases such as certain asylum, refugee, and NACARA cases.
Some of the forms specifically mentioned in the policy memo that can be denied without an RFE or NOID include:
- “A family-based Form I-485 Application to Register Permanent Residence or Adjust Status submitted without a Form I-864, Affidavit of Support Under Section 213A of the INA.
- A Form I-129 Petition for a Nonimmigrant Worker for H-1B nonimmigrant worker submitted without any evidence of the beneficiary’s education or experience (the petition is required by regulation to establish that the beneficiary qualifies for the specialty occupation).”
The USCIS states that the purpose of this memo isn’t to penalize filers for innocent mistakes or misunderstandings of the evidence required to establish eligibility. Yet, it is clear that many applications are, in fact, being denied for those reasons.
Make no mistake about it. The 2018 memo is a major policy shift that places immigration applicants at the mercy of the USCIS officer. The July 2018 memo even encourages the USCIS officers who issue RFEs or NOIDS to decide the cases based just on the information submitted – instead of continual requests for information.