Published September 20, 2018

 

As of September 11, 2018 a new policy went into effect giving immigration officers greater authority to deny immigration related filings without first giving applicants an opportunity to supply the missing evidence.    According to U.S. Department of Homeland Security/Citizenship and Immigration Services officials, the new policy was prompted by what was seen as widespread documentary shortcomings in applicant filings and the consequent waste of resources forced on immigration officials in order to allow applicants to address these shortcomings, especially when the underlying filing may not ever be approvable. 

From the standpoint of the government, instructions for all immigration filings, whether it be for an individual applying for naturalization or permanent residence, or a company petitioning for an H-1B work visa, are provided to the public with adequate information and guidance as to what basic evidence is expected to support their filings.   When the filing falls short of basic, fundamental requirements set forth in the instructions at issue, the DHS/CIS now takes the position that an outright denial of the filing is appropriate as opposed to issuing a “Request for Evidence” or “Notice of Intent to Deny” .   What remains uncertain is how far officials will take their new discretionary powers, and the degree to which honest, minor mistakes will be tolerated and the public will be given an opportunity to take a corrective, remedial measure. 

According to the DHS/CIS memo announcing the new policy (originally issued in July):  “If all required initial evidence is not submitted with the benefit request, USCIS in its discretion may deny the benefit request for failure to establish eligibility based on lack of required initial evidence.” 

In some regards, the plain language of the memo does not appear to present a major policy shift. However, to the extent DHS/CIS officers see their discretionary authority as without meaningful, reasonable limits and as a basis to take a strict, no tolerance approach to documentary inadequacies, then many in the immigration advocacy community see the new measures as overly punitive and potentially abused by government officials.   For example, if an applicant for naturalization forgets to include a copy of their permanent resident card with their application filing, the new policy authorizes the reviewing immigration official to issue a decision denying the application as opposed to mailing out a request for evidence, which would allow for an easy remedy to the shortcoming.   While the applicant will not be prejudiced with regard to eligibility to submit a future N-400 filing that includes the missing document(s), the applicant will once again be forced to pay the N-400 filing fee.    

In the case of H-1B filings, advocates have voiced concern that a single missing supporting document from a long list of required documentation (or even worse, a document included in the filing but overlooked by the reviewing official) can lead to an automatic denial.   Given the combination of these new discretionary powers, the cap on limited H-1B visa supply along with new heightened enforcement related policies – including issuance of Notices to Appear for removal proceedings for nonimmigrant applicants deemed to be out of status as a result of a denied filing – advocates have become concerned that the new policies put applicants in too vulnerable a position from a due process standpoint, and to meaningfully challenge mistaken decisions.  Just as important, the new approach is seen as presenting a significant and highly disruptive impact on businesses depending on H-1B workers, and where a minor inadvertent mistake, by either the filing party or the reviewing official, can have major costs to the business and the lives of the impacted worker.

At this juncture, the best advice I can give applicants and petitioning parties is to thoroughly review their filings, along with the checklists provided in the filing instructions, before submitting to DHS/CIS.

 

PUBLISHED September 20, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois