Policy Change: Request for Evidence and Notice to Appear

In a new policy memo issued July 13, 2018, US Citizenship and Immigration Services (USCIS) provided updated guidelines to its officers which makes it easier to deny H-1B applications without issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). This policy becomes effective on September 11, 2018, and is likely to result in more denials as it does not give applicants an opportunity to provide additional documents.

This updated guidance follows a recent memo dated June 28, 2018 which expanded the circumstances in where officers can issue a Notice to Appear (NTA). The USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States. Now, skilled H-1B workers could be placed in deportation proceedings if their applications are denied even as their employer is simultaneously challenging the denial.