USCIS Streamlines Visa Application Denials

(ESPAÑOL) The USCIS has issued a new memo that streamlines the denial of a visa application (including but not limited to foreign workers, H1B) without first having to issue a request for evidence (RFE) or even a notice of intent to deny (NOID).

This updated guidance comes into effect from 11 September 2018. Immigration lawyers are still poring over the fine print but some initial reactions have come in. The 13 July memo follows exactly 14 days after the USCIS bunged in updated guidelines on the circumstances in which it can present the notice to appear (NTA) before an immigration judge.

USCIS makes it clear that an NTA “commences removal proceedings” against the alien and this method will now apply to a “wider range of cases”.

Top immigration attorney based in New York Cyrus Mehta says the fallout could mean ever more denials, especially when seen in the context of the entire cascade of recent memos.

In the new scheme of things, a USCIS officer can deny a case without giving the applicant a chance to correct the flaw or provide secondary set of documents.

The 13 July memo reverses previous guidance that allowed USCIS officers to deny cases only when there was no possibility that the application could be corrected on an iterative basis.

Barely two weeks ago, on June 28, USCIS delivered another memo which could potentially put H1B workers into deportation proceedings even while he or she is challenging a denial.

Read together, the 28 June memo and the 13 July memo can potentially put any foreign worker including H1B into a lock step.

USCIS says the new 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.

Given the new normal, Mehta suggests H1B extension petitions should be filed well in advance of the expiry date – the law allows six months prior – so that a decision or general tilt is known while the applicant is still in status.