On July 13, 2018, US Citizenship and Immigration Services (USCIS) issued new guidance, effective on September 11, 2018, that provides adjudicators with broader authority to issue case denials. Under the guidance, USCIS officers may exercise greater discretion to deny applications, petitions or requests when there is insufficient evidence to establish benefit eligibility, rather than issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). The agency’s announcement rescinds its 2013 guidance on the same topic and arrives only two weeks after similarly publicizing updates to its Notice To Appear guidance.
In light of recent USCIS policy changes regarding denials and deportations, the following steps may mitigate adverse actions when requesting an immigration benefit:
- Be Clear About the Legal Basis of the Immigration Benefit or Request
As USCIS will continue to issue statutory denials, applications and petitions must clearly state the legal basis for the immigration benefit or request at hand. Without a clear basis and evidence, USCIS adjudicators may deny the case rather than issue a RFE or NOID, which traditionally offered an opportunity to further explain the legal rationale in question. As examples, the USCIS guidance describes cases that will be denied: waivers that lack sufficient evidence, requests for programs now terminated and instances where an official document or evidence is missing, such as for an I-485 Adjustment of Status application. Overall, a clear legal basis and corresponding evidence is necessary upfront. Barebones filings are no longer acceptable even in exigent situations such as in the instance of a visa retrogression.
- Provide a Legal Roadmap to Minimize Gaps in RFE Responses and Offer a Comprehensive Reply
Responses to RFEs should be as thorough and comprehensive as possible. As the new guidance instructs USCIS adjudicators to describe all additional evidence needed within one RFE, petitioners might include a clear roadmap within the RFE response that demonstrates how the case meets its regulatory criteria. As USCIS will heighten its scrutiny to determine whether an RFE response contains sufficient evidence, an outline of the response’s documents more easily references exhibits for the reader. Without a clear roadmap and corresponding evidence within an RFE response, USCIS may deny the case.
- Keep Relevant Public Information Accurate and Current
Remember that USCIS adjudicators can refer to any information that is relevant to the case, whether from an internal or other government source, or from public platforms like Google or a corporate website. For instance, a manager working abroad who is applying for an L-1A intracompany visa should check that the organizational chart in her visa petition matches her role on the corporate website. As information is increasingly only mouse clicks away, keep all public information relevant to the case accurate and current. If the burden of proof lies with the applicant, petitioner or requester, it is best to make the case as legally sound, detailed and thorough for the USCIS reader as possible.
- Prepare a Rebuttal if USCIS Determines an Adverse Decision
Under 8 CFR 103.2(b)(16)(i), USCIS adjudicators must advise when derogatory, or harmful, information adversely impacts a decision. Specifically, an agency NOID must provide adequate notice and sufficient opportunity to submit an explanation, rebuttal or appeal within the record of proceeding in response to an adverse decision.
- Litigation Will Determine Whether a Case is Subject to a Protocol, Court Order or Injunction
USCIS officers must abide by restrictions that litigation might impose upon their review of cases. Specifically, as the Department of Homeland Security remains enjoined by Deferred Action of Childhood Arrivals (DACA) due to preliminary injunctions held by district courts, USCIS will refer to RFE and NOID policies that were in effect on September 5, 2017, in respect to DACA recipients.
- Early Preparation Might Not Be Enough to Protect Lawful Status
Under the new USCIS guidance, a conflicting timeline might occur where a petition for a work visa extension remains pending beyond a petition expiration date, although the extension was submitted a full six months in advance as permitted. In these circumstances, the agency may now deny a matter without an RFE and may directly deport an unsuccessful applicant or requestor who has accrued unlawful presence, without first referring the case to US Immigration and Customs Enforcement (ICE) as traditionally occurred. Such swift policy changes might mean a surprise denial and the removal of a foreign national employee. Thus, early preparation might not be enough to protect lawful status.
- Prepare a Business Strategy to Address Hiring and Retention in Case of USCIS Case Denials
Due to recent USCIS policy changes, contingency planning is now required for cases in the crosshairs as the agency has flagged the following this year: degree relevance or occupational classifications that accept general degrees for H-1B visa holders, limited supervision for L-1A visa holders, or broadly held L-1B visas rather than customized technical knowledge. In the event that USCIS issues a denial in an employee’s case, it is important to explore how best to support the employee workforce and ensure an active talent recruitment and retention strategy in light of the changing immigration landscape.