USCIS Updates Policy Guidance for Certain Requests for Evidence and Notices of Intent to Deny

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today posted a policy memorandum (PDF, 113 KB) (PM) that provides guidance to USCIS adjudicators regarding their discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility. 

This updated guidance is effective September 11, 2018 and applies to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received after that date. Due to preliminary injunctions issued by courts in California and New York, this new PM does not change the RFE and NOID policies and practices that apply to the adjudication of DACA requests.

“For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits,” said USCIS Director L. Francis Cissna. “Doing so 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 in full accordance with our laws.”  

The 2013 PM addressed policies for the issuance of RFEs and NOIDs when the evidence submitted at the time of filing did not establish eligibility. In practice, the 2013 PM limited denials without RFEs or NOIDs to statutory denials by providing that RFEs should be issued unless there was “no possibility” of approval. This “no possibility” policy limited the application of an adjudicator’s discretion.

The policy implemented in this guidance restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate. This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence.  

USCIS will continue issuing statutory denials when appropriate without first issuing an RFE or NOID when the applicant, petitioner, or requestor has no legal basis for the benefit/request sought, or submits a request for a benefit or relief under a program that has been terminated. 
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. Examples of filings that may be denied without sending an RFE or NOID include, but are not limited to:     

  • Waiver applications submitted with  little to no supporting evidence; or
  • Cases where the regulations, the statute, or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no such submission. For example, an Affidavit of Support (Form I-864), if required, was not submitted with an Application to Register Permanent Residence or Adjust Status (Form I-485).

This PM updates Chapters 10.5(a) and 10.5(b) of the USCIS Adjudicator’s Field Manual and contains an “additional considerations” section. The policy in this “additional considerations” section is not new, and is nearly identical to the policy contained in the superseded 2013 PM. 

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), and Facebook (/uscis).

 

USCIS Changing Policy on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today posted a policy memorandum (PDF, 179 KB)changing how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.

This policy aligns with President Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018.

“USCIS is dedicated to our mission of ensuring the integrity of the immigration system. F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status,” said USCIS Director L. Francis Cissna. “The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore.”

Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

This policy memorandum is updating Chapter 40.9.2 of the USCIS Adjudicator’s Field Manual.

USCIS is accepting comments on the policy memorandum. The 30-day public comment period begins today and closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page.

https://www.uscis.gov/news/news-releases/uscis-changing-policy-accrued-unlawful-presence-nonimmigrant-students-and-exchange-visitors

Immigration in the U.S.

The merit based visa system passed by the Senate Bill enables an individual to obtain a green card based on his skills, education, work experience, languages known such as English and nationality. The current merit based visa system will kick-off its operations with one lakh twenty annual visas and it is likely to increase to two lakh fifty thousand visas annually. The current proposed bill has not yet been implemented according to a report submitted by the Economic Opportunity Act.

According to the current proposal mentioned in the bill, the visa numbers prescribed in the merit based category will be able to deliver EB-3 visas to wipe out the huge paper works which is involved in the third category of employment. The applicants will receive the merit based visa numbers upon the commencement of the fifth fiscal year. It is expected to clear all the pending petitions filed under the category of employment and family.

How does it work?

The new merit based system is classified into two major tiers namely Tier-1 and Tier-2. Tier-1 is applicable only for those individuals who are highly skilled and qualified whereas Tier-2 is suited only for medium as well as low skilled workers. It is estimated that about fifty percentages of visas would be assigned to the above mentioned tiers.

Any visas which have not been used in the previous year can be used for applications in the next year. It can be used in both Tier-1 and Tier 2 categories as well. The Tier-1 position is for those individuals who require a considerable amount of preparation.  The Tier-2 position does not involve laborious work.

There would be an increase in the number of visas next year if the national unemployment rate and merit based visas are very less in a fiscal year. The Visa numbers would remain intact during the coming fiscal year if the unemployment rate and the available visa numbers are higher than the merit-based demand. There will be an initial charge of $500 for a merit based immigrant visa.

How are points allocated in Tier-1 and Tier-2 category?

Those applicants who have obtained maximum number of points in a year are eligible to apply for a green card and receive immigration certificate. Listed below are the points assigned in Tier-1 and Tier-2 categories.

  • Education : A PhD applicant receives 15 points and additional points if he has attained a Bachelor and Master’s degree.
  • Employment : An applicant receives 20 points if he has been lawfully employed in the U.S.
  • Familiarity with English: Applicants will receive 80 points if he has successfully passed the English test or a foreign language.

 

Tier-2

  • Employment :

Applicant will receive 20 points if he has been lawfully employed in the U.S.

  • Age :

Applicants who fall between the age of 18 and 24 receive the maximum points.

 

The merit based system will definitely transform the immigration system in the U.S.

Son Nguyen – CEO/ Founder of Greenhandshake

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How to prevent Illegal Immigration in the U.S.?

Almost half of the American residents who are residing in United States of America are of the view that the country should permit the illegal immigrants to reside in the United States of America.

It is estimated that there are about 12,000,000 illegal immigrants who are currently residing in the U.S. and the rate of immigration is also increasing at an alarming rate for the past ten years. So far about one million immigrants have committed serious crimes in the U.S. Security is believed to be one of the major threat associated with the illegal immigration rather than the economy. It is high time to identify those unlawful immigrants who have entered the country and deport those people.

So a question arises as to how to prevent this issue in the future or what are the steps to be implemented to cut down the entry of unlawful immigrants?

  • There are a large group of people who are in favor of deporting unlawful immigrants. It is due to this fact that the crime rates and exporting of drugs is increasing at an alarming rate. The rate of unemployment and cost of education of immigrant’s children are also in bad shape.

During the reign of the Soviet Union in the year 1980, the problem of unlawful immigrants was a serious issue in Canada. There were a large number of trust worthy people who hail from the erstwhile Soviet Union broke the rules and regulations of the country. So the Canadian Government decided to introduce a Flag Pole route by deporting unlawful immigrants and later allowing access to the country as lawful residents.

For example, the Soviet immigrants who were residing in the area of Toronto were forced to move to Buffalo to execute the formalities with respect to the immigrant visas. This is the same principle which has to be implemented in the United States of America. For example, sending the unlawful immigrants to Ciudad Juarez which is one of the largest cities located in the state of Mexico, U.S.A. to perform all the processing. Those illegal immigrants need to be deported from the U.S. and later enabling them to access the country by complying with all the rules and regulations of the country.

What are the needs and requirements to be a lawful citizen in the U.S.?

Supporting documents such as ID proof, passports and birth certificates need to be submitted to confirm the identity of an individual.

The next involves obtaining clearance certificate from the F.B.I. as well as the police department.

Conducting medical exam and obtaining medical clearance certificate is the third step to ensure that there is the individual is fit and healthy.

Interview is the final step where an individual is required to mention the purpose of travel and duration of stay in the country.

The above mentioned methods will definitely helps in warding off the problem of illegal immigration in the U.S.

Nghi Tran – CFO/ Co – Founder of Greenhandshake

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