USCIS Adjudicator’s Discretion Restored in Denying Applications, Petitions and Requests without Issuing RFE’s or NOIDS.

In a new policy memorandum issued by the United States Citizenship and Immigration Services (USCIS) last July 13, 2018, USCIS adjudicators are given discretion to deny applications, petitions, or requests without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if the initial evidence is not submitted or if the evidence in the record does not establish eligibility. The policy is to take effect on September 11, 2018 and applies to all applications, petitions, and requests received after said date.

The new policy memorandum departs from (and rescinds) a policy memorandum from June 3, 2013 which stated that adjudicators should issue an RFE unless there was “no possibility” that the deficiency in the application, petition, or request could be cured by the submission of additional evidence. Under the June 3, 2013 memorandum, denials issued without an RFE or a NOID were only issued for statutory denials such as if the applicant, petitioner or requestor has no legal basis for the benefit that they are applying, petitioning, or requesting for or if the benefit or relief requested is under a program that has been terminated. 

With the rescission of the “no possibility” policy, the memorandum means that, aside from statutory denials, USCIS may also deny applications, petitions and requests without issuing an RFE or a NOID if not all the required evidence is submitted with the benefit request. Said denial will be based on lack of required initial evidence. Examples of cases where there may be a denial without issuing an RFE or a 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 or evidence establishing eligibility at the time of filing and there is no submission. For example, family-based or employment-based categories where an Affidavit of Support (Form I-864), if required, was not submitted with the Application to Register Permanent Residence or Adjust Status (Form I-485).

The policy is intended to discourage frivolous or substantially incomplete filings and to encourage applicants, petitioners, and requestors for U.S. visas for overseas education and green cards to be diligent in collecting and submitting required evidence.

by: Enterline and Partners Consulting

U.S. Department of State Vietnam Visa Approvals for May and June 2018

U.S. Consulate in Ho Chi Minh City

     The U.S. Department of State (“DOS”) has published a list of visa issuances for both immigrant and nonimmigrant visas for the months of May and June 2018. 

     There were 1,643 immigrant visas issued for Vietnamese nationals in May. Eighty-four were IR-1 visas and 187 were CR-1 visas. The IR-1 visa and the CR-1 visa are issued to foreign spouses of U.S. citizens. IR-1 visas are issued to those who have been married to a U.S. citizen for more than two years while CR-1 visas are issued to foreigners who have been married to a U.S. citizen for less than two years. 

     There were no EB-5 visas issued in Vietnam. 

     A total of 14,633 nonimmigrant visas were issued to Vietnamese nationals in May. Of that number, 12,080 were B-1/B-2 visas. A B-1/B-2 visa is issued to those visiting the U.S. for temporary business and/ or pleasure. There were 1,113 visas issued to Vietnamese students aspiring to study in the United States. This included 1,110 F-1 visas for academic and language students, 3 M-1 visas for vocational students, and 125 J-1 visas for exchange visitors such as exchange students, au pairs, professionals, scholars, and teachers. 

     The majority of the visas issued from Vietnam were issued by the consulate in Ho Chi Minh City. For May, the consulate in Ho Chi Minh issued 1,601 immigrant visas and 10,136 nonimmigrant visas while only 6 immigrant visas and 3,796 nonimmigrant visas were issued from Hanoi.

     The number of immigrant visas approved for Vietnamese nationals slightly decreased to 1,602 in June. There was, however, an increase in the number of IR-1 (103) and CR-1 (238) visas approved. 

     On the other hand, June showed a slight increase in the number of nonimmigrant visa approvals for Vietnamese nationals bringing the total to 14,945. Majority of the visas issued were from the B-1/B2 category (10,430 visas). The number of academic visas (F, M, and J) increased nearly 173% because of the upcoming U.S. academic year. Specifically, 3,147 F-1 visas, 8 M-1 visas, and 228 J-1 visas were issued to Vietnamese students. 

     Most of the June issued visas from were also issued by the consulate in Ho Chi Minh. The consulate in Ho Chi Minh issued 1,566 immigrant visas and 10,309 nonimmigrant visas. The consulate in Hanoi issued 8 nonimmigrant visas and 3,942 nonimmigrant visas. 

     These numbers only show the approvals and does not in any way show a trend since data on the number of applicants per month and the number of rejections is not available to the public.

by: Enterline and Partners Consulting