USCIS adjudicators have recently received more latitude to deny immigration applications, petitions and requests. Last month, a USCIS policy memorandum (PM-601-0163) became effective that affords the USCIS the ability to deny an application without first issuing a Request for Evidence or Notice of Intent to Deny if the application lacks a certain degree of requisite evidence. This increase in discretion potentially could have an impact upon a number of routes to permanent residence, including National Interest Waivers.
By way of background, prior to this policy memorandum, if a foreign national filed a petition that was devoid of certain information, the USCIS nearly always would issue either a Request for Evidence (“RFE”) or a Notice of Intent to Deny (“NOID”) with the purpose of putting the foreign national on notice that the petition was deficient in certain areas and giving him or her a chance to rectify its shortcomings. Previously, the adjudicators had been instructed by the USCIS to issue RFEs or NOIDs upon receiving an incomplete petition unless the petition had “no possibility” of being enhanced with additional information. Outright denials, therefore, were extremely rare.
Now however, since the effective date of this memo, adjudicators have the ability to deny a case – including a National Interest Waiver petition – without the issuance of an RFE or NOID if it lacks enough supporting evidence to establish eligibility. In other words, if an individual deficiently files a petition, the USCIS is under no obligation to give that individual notice that the petition is incomplete, or a chance to address the deficiencies and fill in the gaps. In fact, the memo seems to actually encourage adjudicators to be more aggressive with denying cases outright.
This change puts significantly more pressure on a foreign national seeking permanent U.S. residence to ensure that his or her application is not only complete, but compelling. No longer will an individual likely get a chance to amend a sloppily-filed petition – it will need to be done right the first time.
The process of preparing and organizing an NIW petition can be document-intensive and involves numerous moving parts that can be extremely difficult to manage if attempting to file alone. Particularly, the tasks necessary for an effective NIW application include obtaining properly written and persuasive recommendation letters, preparing the documentation and forms that accompany the petition, drafting a convincing petition letter illustrating that the petitioner’s work is in the national interest, and properly filing the documentation and forms.
This understandably can be a daunting task without the proper guidance. Moreover, with the advent of this policy adjustment by the USCIS, there likely now is much more at stake.
To take it a step further, as noted in our previous blog post, should the petitioner receive an outright denial for perhaps a NIW or Adjustment of Status petition, and have no underlying immigration status, he or she could possibly be subject to the issuance of a Notice to Appear and subsequent deportation.
The potential impact of this policy memorandum once again magnifies the importance of securing the help of a responsive and experienced legal immigration team to maneuver through the potential pitfalls that can befall those trying to obtain permanent residence in the United States.
Thomas J. Arkell and his immigration team at Dunn Law Firm have successfully navigated the complexities of thousands of immigration filings. Why leave anything to chance? Let Dunn Law Firm ease your concerns and guide you on the road to green card success.
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