On July 13, 2018, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance (https://www.uscis.gov/news/news-releases/uscis-updates-policy-guidance-certain-requests-evidence-and-notices-intent-deny) allowing its adjudicators to deny a petition without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). The new policy applies to petitions and applications filed on or after September 11, 2018.
In its announcement of the new policy, USCIS states that the policy will discourage what it calls frivolous and skeletal petitions which are used to “game the system.”
The memorandum restores full discretion to USCIS adjudicators to deny a petition or application where required initial evidence was not submitted or where “the evidence of record fails to establish eligibility.” This language is an extremely broad grant of discretion without any indication that supervisor review is required before such denials are issued.
On July 5, 2018, USCIS announced Notice to Appear (NTA) policy guidance (https://www.uscis.gov/news/news-releases/uscis-updates-notice-appear-policy-guidance-support-dhs-enforcement-priorities) to support DHS enforcement priorities.
USCIS adjudicators are now directed to issue an NTA (which initiates deportation proceedings) to certain foreign nationals whose employer-sponsored petition for a working visa is denied. This includes foreign nationals who were in status at the time an employer petition was filed but whose status expired while the petition was pending. The most common example would be F-1 students whose practical training work authorization expired while an H-1B cap petition was pending.
What does this mean for employers?
The only way to respond to a denial without an RFE or NOID is to re-file the petition with new documents or information and pay all of the filing fees a second time. This is not an attractive option.
It will take some time to discern how these policies will play out in practice. However, there may be no alternative to prepare every petition, no matter how routine, as though it is in response to one of the familiar and burdensome RFEs so commonly issued by USCIS.
Employers should ask their immigration attorney to vet a foreign national candidate before an offer of employment is made to assess the likelihood that a petition is potentially approvable in light of the increasingly unforgiving mentality at USCIS.
These policy changes continue the Trump Administration attack on legal immigration by adding expense as well as a lack of predictability and transparency.