Beginning September 11, 2018, USCIS immigration officers will have more discretion in issuing Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs). In July 2018, USCIS Director L. Francis Cissna noted that this change in policy was “long overdue,” that predicts it will “discourage frivolous filings and skeletal applications that are used to game the system” and ultimately improve USCIS efficiency.

On September 6, 2018, the Ombudsman’s Office provided further details on the new policy change. The following was noted:

  • The new policy takes effect on September 11, 2018, and will apply to applications received by USCIS on or after September 12, 2018.
  • Adjudicators have full discretion to issue denials where the initial evidence submitted does not establish eligibility or there is no possibility of approval based on the evidence submitted.
  • The new policy is not meant to penalize those who make innocent mistakes or who misunderstand the requirements establishing eligibility, but is intended to promote complete filings so resources can be allocated to timely adjudicate petitions.
  • If the initial required evidence is missing, adjudicators will determine whether this was due to mistake or misunderstanding and to what extent the applicant tried to comply with the instructions and regulatory requirements. If it is determined that the “error” was due to a mistake or misunderstanding, an RFE would be issued instead of an outright denial. USCIS declined to clarify the factors for making a determination, but it provided, as an example, missing pages from an applicant’s passport.
  • USCIS will publish optional checklists outlining the initial required evidence for each visa classification. These checklists are intended for information purposes and are not meant to replace or change the regulatory or statutory requirements.
  • The new policy does not affect or change appeal rights.

The checklists were issued on September 11, 2018, and are available at USCIS.gov.

USCIS is in the process of training officers regarding the new policy memo, and the Field Adjudicators Manual has been updated with guidance on the subject. While USCIS has stated its intention not to penalize “innocent mistakes,” it is unclear how this will play out in practice.

State Dept. Announces Over-Subscription of September Employment-Based Second and Third Preference Categories

The Department of State’s Visa Bulletin for the month of September 2018 includes the following excerpted information:

WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED SECOND (E2), Third (E3), and Third Other Worker (EW) PREFERENCES: There has been an extremely high rate of demand for Employment numbers, primarily for USCIS adjustment of status applicants as a result of the successful implementation of their new interview process. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose E2, E3, and EW Final Action Dates for the month of September with these dates being imposed immediately for new requests for visa numbers. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY 2018 annual limits.

The implementation of the above-mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

Readers were also advised in item F of the July Visa Bulletin that some retrogression might occur prior to the end of the fiscal year. It has been necessary to retrogress the September Final Action Dates for the China Employment-Based Second, and India Employment Second, Third, and Third Other Worker preferences in an effort to hold worldwide number use within the maximum allowed under their FY 2018 annual limits. This will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

Visa Availability in the Coming Months

EMPLOYMENT-based categories (potential monthly movement)

Employment First: WORLDWIDE (all countries): October Final Action Dates will be imposed for all countries. Limited, if any forward movement can be expected prior to December.

Employment Second: Worldwide: Current for the foreseeable future. China: Slow movement pending receipt of demand from recent advances India: Up to two weeks

Employment Third: Worldwide: Current China: Up to three weeks India: Slow movement pending receipt of demand from recent advances Mexico: Current Philippines: Minimal

Employment Fourth: Current for most countries El Salvador, Guatemala, and Honduras: Little, if any forward movement Mexico: Up to three months

Employment Fifth: The category will remain “Current” for most countries China-mainland born: Up to one week Vietnam: Steady forward movement

The above final action date projections for the [Employment category] indicate what is likely to happen on a monthly basis through January. The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.

USCIS Accepting Copies of Negative O Visa Consultations Directly From Labor Unions

USCIS announced on September 14, 2018 that, effective immediately, USCIS has created a venue to accept copies of negative consultation letters directly from labor unions regarding current or future O nonimmigrant visa petition requests. O-1 and O-2 nonimmigrant visas are available to individuals with extraordinary ability in science, education, business, athletics, or the arts, and individuals with extraordinary achievement in the motion picture or television industry, and certain essential support personnel. For more information about O-1 requirements click here. A consultation letter from a U.S. peer group, labor organization, and/or management organization is generally required for petitions in the O visa classification. One of the most important components of a successful O-1 petition is the submission of reference letters from experts in the beneficiary’s field of extraordinary ability. In fact, they form the backbone of many O-1 petitions, as the expert writers of these letters can address how the beneficiary meets any of the other O-1 criteria. Some labor unions brought up concerns that some advisory opinions may be falsified by applicants and submitted to USCIS as favorable consultations when in fact these were negative. Starting from now, labor unions that provide negative consultation letters will be able to send a copy of it directly to USCIS so that officers can compare the letters. The process of submitting the necessary O visa documents and requirements remain unchanged.

New Plan To Detain Immigrant Children

The Trump administration announced plans to release proposed changes to regulations that are intended to terminate the Flores Settlement Agreement – a decades-old court settlement put in place to ensure the safety and proper care of children in immigration detention. On September 7th, 2018 the Department of Homeland Security and the Health and Human Services Department issued the proposed rules. This could lead to the rapid expansion of detention facilities and more time in custody for minor children.