Unpacking the USCIS Memorandum: NOID & RFE (Part 2 of 2)

In the past few weeks, two memorandum out of the United States Customs and Immigration Service (USCIS) have upturned years of immigration procedures. In the first memo, USCIS announced a new direction to encourage USCIS officers to freely issue notices to appear (NTA), notably for cases in which a visa application is denied. In a separate memo, USCIS announced new measures to cut down on visa processing time, however with unorthodox methods. Starting September 11th, USCIS officers may automatically deny applications that have insufficient evidence without issuing a notice of intent to deny (NOID) or request for evidence (RFE). Together, these two memos mark what could be the biggest threat to legal immigration yet.

Threats to H-1B

As previously reported, increased scrutiny against H-1B visa applications spurred an unprecedented upsurge in RFE notices in 2017. Although RFE were not uncommon for H-1B applications, given the bulk of information required to prove both the qualifications of the employee and the employers need for the specialty hire, the upsurge was far from usual. With so many H-1B visas pending, there was an enormous backlog of H-1B applications. The memo release on July 13^thwould cut down on issuance of RFEs and would instead automatically deny insufficient H-1B applications. Although the recent USCIS change aims to cut down on backlogs in visa application processing, the memo may spell a wave of unprecedented deportations.

Separately, the two above mentioned USCIS memos present only extreme inconveniences to visa applicants and employers. Together, these policies spell trouble for H-1B visa holders and all foreign nationals wishing to live and work in the United States. Under the new policies, H-1B applications, which are often delayed due to RFE’s, could be automatically denied for insufficient evidence, without notice to the employee or employer. Following denial from USCIS, even in circumstances in which the applications fell short due to clerical errors, these employees could receive a NTA and face deportation. Although extreme, these policies would allow a legal non-immigrant worker living in the United States awaiting their visa renewal to go from working in the United States to being sentenced to immediately depart the country.

Although the memo aimed to reduce the number of NOIDs and RFEs sent to visa applicants has yet to go into effect, the impact of the recent changes to USCIS procedures is likely to affect thousands. Combined, these two memos may spell catastrophe for legal immigration in the United States.