On July 13, 2018, U.S. Citizenship and Immigration Services (USCIS) posted a policy memorandum on its website, that provides guidance to USCIS adjudicators regarding their discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility.

What does this mean? For the almost two decades that I have taken on immigration cases, from my first summer in law school as an intern at an immigration law clinic in Washington, D.C. in 1999 to the present day, applicants applying for any immigration benefits (principally family and employment-based cases) and the lawyers who represent them, have always been afforded the opportunity to respond to requests for evidence when USICS decided that information was missing or deficient, that more documentation or clarification was needed, thus allowing for a system of due process to exist.

Immigration law has become more and more nuanced over the past two decades, and the gap between what the law states and the way it is applied by USCIS officials has become a chasm, especially since Donald Trump became President. This has been clearly demonstrated in the sharp rise in requests for evidence (RFEs) and notices of intent to deny (NOIDs) which have been issued in the past year and a half. In speaking with fellow immigration attorneys, I believe that the percentage of cases receiving RFEs and NOIDs has at least doubled in the past year. In addition, RFEs and NOIDs are increasingly vague and often incorrectly restate the law, a clearly concerned attempt to trick applicants and their representatives into responding in a way that can lead to a denial, and so denials have also increased significantly, leaving employers without employees, U.S. citizens and green card holders without papers for their loved ones, and many individuals either stuck in their home countries, or if in the U.S., in legal limbo once their status has expired, pending the adjudications of their cases which ended in denials.

This is where we stand in August 2018, dealing with an already escalating problem. So what will the newly published guidance accomplish? The announcement purports the following motivation for the new policy: “The policy implemented in this guidance restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate. 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.”

The inherent problem with this language it that it will give adjudicators carte blanche to deny ANY case, given the basis for denial could simply be that it is “incomplete,” meaning the USCIS official does not think it is perfect. The request for evidence process has existed for many years to rectify apparent deficiencies perceived by an adjudicator and allowing him or her to communicate those to the applicant, with an opportunity to complete the record with a case that meets the requirements. Of course, some frivolous cases are filed, but the problem is that all cases which are not perceived to be perfect will now be put in the same basket like the ones which are frivolous or “placeholders,” being denied outright, and this means that there is no longer due process.

There is no clear indication whether cases will be denied with a written justification, which would create no guidance regarding what steps to take next. In addition, assuming even that the denial notices included written justifications, since appeals are first reviewed by the same official who denied the original case, and has traditionally taken many months to receive answers (thus leaving the applicants or beneficiaries out of status when they are denied), there is no clear legal recourse left to the plethora of applicants and sponsors, except to apply and pay the filing fees again, assuming the individuals are still in valid legal status and are eligible to apply again.

I have always prided myself on being able to respond to requests for evidence, no matter how heavy-handed, lopsided or incorrect they were, to get good and legitimate cases approved. While I have seen a significant and alarming uptick in the number of cases USCIS wishes to deny since Donald Trump became President, I was always grateful for the fact that due process still applied, and that my clients would always have a chance to rebut and refute and establish their eligibility. The new policy to be put in place, effective on September 11, 2018, essentially represents the absence of due process, the gutting of the U.S. Constitution, and a slap in the face to the history of a country that was built, and continues to be built, on the labor of immigrants and their ancestors. The effect of this policy could be to shut American doors to foreigners, many of whom greatly contribute to its economic success.

SMA Law Firm strongly suggests that you voice your concerns to your local, state and federal representatives to put a stop to this clear violation of the laws of this great country.