USCIS Erects Barrier to Immigration Benefits

By Robert Law on June 11, 2021

I have frequently criticized President Biden’s Executive Order (E.O.) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans” and the U.S. Citizenship and Immigration Services (USCIS) policies derived from it as an impermissible effort to circumvent laws and eligibility criteria the new administration dislikes. (See here, here, here, here, here, and here.) As I have repeatedly pointed out, E.O. 14012 directs relevant federal agencies to “identify barriers that impede access to immigrations benefits and fair, efficient adjudications of these benefits”, but notably fails to define the key term “barriers”. As a result, USCIS has failed to articulate with specificity a single, actual barrier in the course of implementing policy changes under the Biden administration — because, of course, no such barriers exist.

Which brings me to a June 9 USCIS email with the subject line “USCIS Updates Policies to Improve Immigration Services”, which informed the public of three policy changes. Relevant here is the change under the header “Requests for Evidence and Notices of Intent to Deny”, where the agency announces it is rescinding a July 2018 memo and reverting to the 2013 policy that requires adjudicators to issue a request for evidence (RFE) or a notice of intent to deny (NOID) where the application, petition, or benefit request fails to establish eligibility. While the associated policy alert does not explicitly cite E.O. 14012, it contains all the predictable buzzwords: “In order to reduce barriers that may impede access to immigration benefits and ensure the agency is fairly and efficiently adjudicating immigration benefit requests ...”

As framed by Biden’s USCIS, this policy change “will ensure that benefit requestors are given an opportunity to correct innocent mistakes and unintentional omissions and will help protect both benefit requestors and the agency from expending additional resources unnecessarily.” That explanation sounds reasonable, except that it blatantly misstates the 2018 policy.

Under the July 2018 memo, adjudicators were empowered to use their discretionary authority to deny applications, petitions, or requests for immigration benefits when required initial evidence was not submitted or the evidence submitted failed to establish eligibility, rather than first issuing an RFE or NOID. As then-Director Cissna explained at the time, “For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners.” Restoring adjudicators’ discretionary authority, Cissna declared, “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.”

As I explained in a prior post entitled, "USCIS Announces It Will Violate the Law", the past practice (and now current practice) of accepting woefully incomplete applications is not only a violation of the form’s rejection criteria, but diverts limited USCIS resources from processing properly filed benefit requests, adding unnecessary (and unfair) delays in the adjudicative process for those who follow the rules. Requiring adjudicators to issue RFEs and NOIDs for skeletal filings and those that barely have any information relevant for assessing eligibility slows down the adjudicative process for everyone, is highly inefficient, and flips the burden from the alien to the agency. It is patently false that the 2018 policy resulted in denials for otherwise eligible benefit requestors due to mere typos. Denials for flawed filings are not a permanent bar; instead, the alien always has the opportunity to refile a properly completed application or petition if he or she truly wants the immigration benefit.

At the time, the career leadership of the service centers welcomed the return of discretionary authority for adjudicators to promptly deny these skeletal filings. The reasoning was very simple and straightforward: Removing flawed submissions from the queue streamlined the process for adjudicators to work on properly submitted applications and reduced fiscal costs to the agency incurred through the RFE and NOID process.

In its haste to undo the policies of the Trump administration, the Biden administration has inadvertently made it harder for USCIS adjudicators to do their job and for those seeking immigration benefits to obtain them in a timely manner. Put another way, the Biden administration has actually erected a barrier to immigration benefits and worsened immigration services by overly taxing adjudicators. Yet again, the Biden administration is catering to those who do not follow the rules at the expense of those who do.