United States Citizenship and Immigration Services has taken another step in making it more difficult for employers to hire and retain foreign national employees. On July 13, 2018, USCIS issued a policy memorandum giving immigration officers significantly more discretion to deny immigration applications and petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). The policy went into effect on September 11, 2018.
The memorandum applies to virtually all applications seeking an immigration benefit, such as H-1Bs, L-1s and green card applications. It states that if the application fails to include documentation required for the benefit or if the evidence submitted fails to establish eligibility, the application can be denied without issuing an RFE or NOID.
The memorandum opens the door to significantly more USCIS application denials. If, for example, USCIS discovers that a company’s H-1B or L-1A application is missing information or documentation, such as a photograph or educational evaluation, it can deny the application outright without giving the company the opportunity to correct any mistakes or provide additional information or documentation that could result in an approval.
According to USCIS, the purpose of the memorandum is to discourage frivolous or substantially incomplete filings and to encourage applicants to be diligent in collecting and submitting required evidence, and that it is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.
For at least the past 5 years, USCIS immigration officers have been instructed to follow a 2013 memorandum that stated an RFE should be issued for applications unless there was “no possibility” of an approval. The 2018 memorandum gives immigration officers significantly more discretion to deny applications, even if the missing information or documentation can easily be submitted by the employer in response to an RFE.
The 2018 memorandum is only the latest step by the current administration in Washington to significantly reduce the number of foreign nationals working in the U.S. The past 18 months have seen gradually tightening restrictions on applications resulting in significantly more RFEs and denials. Now it appears that rather than giving employers the ability to at least respond to an RFE in order to obtain an approval, USCIS can skip that step and issue immediate denials.
As a result of the memorandum, it is incumbent upon employers and law firms to increase their review of application filings to ensure that all required documentation and information is included. If you have questions about the new policy or any other immigration issues, please contact attorneys at Minsky, McCormick & Hallagan.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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