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… By the way, Happy Friday the 13th!

~ImmigrationGirl