According to the USCIS July policy memorandum, there are numerous questions about the Trump administration’s new discretion policy. These questions include:

Why was the policy memorandum issued?

The Trump administration believed the prior policy wasn’t consistent with the fact that the applicant should have the burden of proof when seeking an immigration benefit. The memo stated that many applications only had minimal documentation.

The memo also states that the policy guidance doesn’t apply in cases where form instructions or regulations permit applicants, petitioners, or requestors to file before all required initial evidence is available.

How does a statutory denial differ from a “lack of initial evidence” denial?

A statutory denial is a legal-based denial – there’s no legal basis for the immigration benefit being sought. Examples include:

  • Waiver applications that require the applicant to show extreme hardship to a qualifying relative, but the applicant is claiming extreme hardship to someone else and there is no evidence of any qualifying relative; or
  • Family-based visa petitions filed for family members that are not authorized by statute (such as a grandparent, cousin, etc.).

A lack of initial evidence denial is one in which all required initial evidence is not submitted with the benefit request. Examples of filings that may lack required evidence (and where an RFE/NOID doesn’t need to be sent) include:

  • “Waiver applications submitted with no supporting evidence”
  • “Cases where the regulations, statute, or form instructions require the applicant to submit an official document or another form of evidence establishing eligibility at the time of filing and there is no such submission. For example, a family-based Application to Register Permanent Residence or Adjust Status (Form I-485) is filed without an Affidavit of Support.”

How is USCIS preparing its adjudicators to implement this policy?

Adjudicators are being given a refresher course on how to exercise their discretion.” The USCIS adjudicators’ decisions may be subject to post-adjudication review.”

Will there be any further USCIS guidance for applicants?

The memo states that the USCIS “will publish checklists of required initial evidence for each form/classification, which will be an optional tool to assist the public with filing forms.”

Contact an experienced immigration lawyer to discuss how the Trump discretion policy memo of 2018 means you need to get your application correct when you first submit it.

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