USCIS Won't Deny Visa Petitions for Simple Mistakes

​Editor's Note: U.S. Citizenship and Immigration Services has since announced that the Notice to Appear policy referenced below will go into effect Oct. 1 and will not be applied to employment-based petitions. 

U.S. Citizenship and Immigration Services (USCIS) officers won't use new discretionary authority to deny visa petitions and green card applications for "innocent mistakes," the agency clarified.

Since Sept. 11, agency adjudicators have been given wider latitude to deny petitions, applications and benefits requests without first issuing requests for evidence (RFEs) or notices of intent to deny when required evidence is not submitted or when the evidence fails to establish eligibility. The RFE and notice step, while frustrating for many employers and the attorneys who work on their cases, had given petitioners and applicants another chance to respond to concerns, provide missing evidence, or correct technical errors and simple oversights.

The policy change is designed so that USCIS can more easily deny frivolous cases and discourage petitioners from filing substantially incomplete cases. In the latter case, petitioners sometimes try to buy time so they can provide the required evidence later, during the RFE process.

"For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners," said USCIS Director L. Francis Cissna. "This long overdue policy change … will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency's ability to efficiently and fairly adjudicate requests for immigration benefits."

Policy Change Details

The USCIS Ombudsman's Office outlined the following details about the policy change:

• The new policy is not meant to punish those who make simple mistakes or who misunderstand the requirements for establishing eligibility.
  
• If the initial required evidence is missing, adjudicators will decide if this was due to mistakes or a misunderstanding and to what extent the applicant tried to comply with the instructions and requirements. If USCIS decides that the error was due to a mistake or misunderstanding, it will issue an RFE instead of a denial.
  
• USCIS published checklists outlining the initial required evidence for each visa type.
  
• The policy applies to all applications, petitions and requests filed with USCIS except for Deferred Action for Childhood Arrivals adjudications.
  

The updated policy rescinds a 2013 policy that limited denials without RFEs or notices of intent to deny to those cases where there was "no possibility" of approval.

The Society for Human Resource Management (SHRM) sent a letter to Cissna on Sept. 4, expressing concern with the policy change. "While, over the years, there have been varying degrees of inconsistency in adjudications, employers have at least generally had assurance that, if an adjudicator was unsure whether a case was approvable, the employer would have a chance to provide more evidence of approvability," SHRM wrote. "The current regulatory environment creates tremendous uncertainty in how individual cases will be determined as more denials will result from inconsistent adjudications, not just RFEs."

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Uncertain Future

Depending on how adjudicators apply this new guidance, it is possible these changes "will result in more denials of potentially meritorious applications without any chance to correct applications or submit additional information," said Robert Sheppard, an attorney in the Houston office of Vinson & Elkins. "It may also result in more RFEs generally—which are especially costly to employers."

Many employers have commented on the marked increase in RFEs and denials since President Donald Trump took office in 2017. But the majority of RFEs still result in approved cases.

Anastasia Tonello, managing partner at Laura Devine Attorneys in New York City and president of the American Immigration Lawyers Association, pointed out that approval rates for cases after responding to RFEs are high, and about half of the RFEs she's seen ask for evidence that was in the application but that USCIS staff missed in their review.

"While USCIS has stated its intention not to penalize innocent mistakes, it is unclear how this will play out in practice," said Jessica Lang, an attorney in the Boston office of Jackson Lewis. "For instance, how will USCIS actually determine whether the error was just a mistake on the part of the petitioner or even on the part of the agency? Did the petitioner forget to include a transcript, or was the copy of the transcript lost by USCIS after the filing arrived at the service center?"

Tahmina Watson, an immigration attorney and owner of Seattle-based Watson Immigration Law, agreed, adding "For example, in an adjustment of status case, if one does not submit passport-size photographs, that will now likely be a ground for denial. But if the government thinks something is missing, then the action should not be a denial, but a rejection of the case so that the client can refile without forfeiting hefty filing fees. A denial means that USCIS will keep the fees of the case and essentially deprive the applicant due process to correct the problem. This is hugely problematic."

Watson said a bigger problem lies in the unprecedented scrutiny in RFEs over the last year. "A recent H-1B RFE I received wanted names and contact details of all businesses at the same address as my client's business," she said. "I can tell you that I personally do not know all the other businesses in my office building and would have a hard time getting contact details for them all. How can I possibly expect my client to know all of that?"

Watson said her chief concern is that USCIS will start denying such cases without RFEs. "We have to be even more careful than before," she said.

That's especially true in the wake of new agency guidelines issued earlier this month that may significantly increase the negative ramifications of a denial for both employers and the foreign talent they hire. The updated guidance (now temporarily postponed) instructs USCIS officers to serve a notice to appear—a charging document that orders foreign nationals to appear in immigration court to begin the removal process—to anyone unlawfully present in the United States when an application, petition or benefit request is denied.

"The consequences could be really devastating to employers," Tonello said.

"Employers should consider these new rules and their potential application in determining whether it makes financial sense to sponsor an applicant," Sheppard said. "It is also crucial for employers to marshal every bit of evidence supporting the application from the outset to avoid potential denials and costly RFEs. Employers should play an active role in the application process by diligently reviewing applications to ensure that all relevant and helpful evidence has been included."