Can USCIS Deny Petitions Without RFE Due to Recent Memo?

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  4. Can USCIS Deny Petitions Without RFE Due to Recent Memo?

Answer from Immigration Attorney Jack C Sung.

I do believe that USCIS will continue to issue RFE for those cases where the missing evidence or information is not material or required by regulation.

For example, If an H-1B Visa petition packet is missing the beneficiary’s diploma, it may lead straight to denial because regulations require the beneficiary to establish the degree requirement is met.

However, if the beneficiary fails to send an I-20, USCIS should request an RFE because an I-20 is not required by regulation although it is helpful to establish maintenance of status. Therefore, the fact that this document is missing should not lead to a straight denial of the H-1b petition.

In the USCIS memo, the government seems to want to address the issue where applicants submit grossly deficient application packets.

Issuing RFE to those applications will be highly costly and often lead to agency inefficiency. However, immigration lawyers believe that for well-prepared applications that meet the regulatory requirements, RFE is still appropriate for missing information or documents that helpful for adjudication but unrelated to eligibility for the benefits sought.

Short answer: If your application is well prepared, do not worry about a straight denial. My office has received RFE just yesterday, which means USCIS is still issuing them.

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