Over the last week, we have been looking at various changes in policy and procedure related to immigration law. We have covered the travel ban, changes to advance parole, and deference to prior determinations and today, we are looking at denials.
For most applications received on or after September 12, 2018, U.S. Citizenship & Immigration Service (USCIS) examiners will have the discretion to issue denials without first sending a request for evidence (RFE) or notice of intent to deny (NOID) if they determine that the application was frivolous or incomplete.
While this rule was the case until 2013 - and did not result in many such denials - the question is how it will be implemented now.
In a recent stakeholder teleconference hosted by the Office of CIS Ombudsman, the following guidance was confirmed:
- Deferred Action for Child Arrivals (DACA) applications and DACA-related applications are exempt.
- Asylum and refugee-related filings are exempt.
- The intent is to deny “placeholder” applications rather than to deny for innocent omissions. The idea is to provide more resources for adjudication.
- Checklists for filing are being provided on the USCIS website. These checklists are not meant to replace laws and regulations and cannot be relied upon as a substitute for reading the laws and regulations.
- A denied application may be appealed or a motion to reopen and reconsider filed as with any application.
Because processing times are unacceptably slow, the ability of examiners to focus on legitimate filings is welcome. If the policy is implemented in a reasonable way, it should not affect people who are trying to comply with the regulations.
However, given the unreasonable interpretations seen in some other contexts lately, we are implementing additional procedures to ensure that our applications follow the laws and regulations and do not omit initial evidence.
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