What If USCIS Started To Deny More I-924s Outright Instead of Always Sending an RFE?

by Joseph Whalen

That is a very interesting possibility, not a probability by any means, at least not yet. USCIS is under no legal obligation to issue an RFE or NOID. Let’s take a look at some generally applicable regulations and examine them from a potential USCIS perspective for a moment.

8 CFR § 103.2 Submission and Adjudication of Benefit Requests

(a) Filing.

(1) Preparation and submission. Every benefit request or other document submitted to DHS must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR chapter 1 to the contrary, and such instructions are incorporated into the regulations requiring its submission. Each benefit request or other document must be filed with fee(s) as required by regulation….

* * * * *

(b) Evidence and processing.

(1) Demonstrating eligibility. An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing[1] the benefit request and must continue to be eligible through adjudication. Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request.

* * * * *

(8) Request for Evidence; Notice of Intent to Deny

(i) Evidence of eligibility or ineligibility. If the evidence submitted with the benefit request establishes eligibility, USCIS will approve the benefit request, except that in any case in which the applicable statute or regulation makes the approval of a benefit request a matter entrusted to USCIS discretion, USCIS will approve the benefit request only if the evidence of record[2] establishes both eligibility and that the petitioner or applicant warrants a favorable exercise of discretion. If the record evidence establishes ineligibility, the benefit request will be denied on that basis.

(ii) Initial evidence. If all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS.

(iii) Other evidence. If all required initial evidence has been submitted but the evidence submitted does not establish eligibility, USCIS may: deny the benefit request for ineligibility; request more information or evidence from the applicant or petitioner, to be submitted within a specified period of time as determined by USCIS; or notify the applicant or petitioner of its intent to deny the benefit request and the basis for the proposed denial, and require that the applicant or petitioner submit a response within a specified period of time as determined by USCIS.

(iv) Process. A request for evidence or notice of intent to deny will be communicated by regular or electronic mail and will specify the type of evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. The request for evidence or notice of intent to deny will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed twelve weeks, nor shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be granted.

* * * * *

(13) Effect of failure to respond to a request for evidence or a notice of intent to deny or to appear for interview or biometrics capture

(i) Failure to submit evidence or respond to a notice of intent to deny. If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the benefit request may be summarily denied as abandoned, denied based on the record, or denied for both reasons. If other requested material necessary to the processing and approval of a case, such as photographs, are not submitted by the required date, the application may be summarily denied as abandoned.

* * * * *

8 CFR § 103.5 Reopening or Reconsideration.

(a) Motions to reopen or reconsider in other than special agricultural worker and legalization cases

* * * * *

(2) Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence. A motion to reopen an application or petition denied due to abandonment must be filed with evidence that the decision was in error because:

(i) The requested evidence was not material to the issue of eligibility;

(ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or

(iii) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Service’s request was sent, and the request did not go to the new address.

(3) Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.

So, according to the basic processing regulations applicable pretty much across-the-board, the issuance of either an RFE or NOID is discretionary. Many of these regulations were meant give USCIS an easy out or dissuade frivolous and skeletal filing; which are usually nothing but a ploy to buy time in order to delay an NTA, or get a continuance in Immigration Court, outright fraudulent filings, or some other ulterior or nefarious motive.

Now to get back to where this essay started. The title consisted of the question: What if USCIS started to deny more I-924s outright instead of always sending an RFE? Such an action is well within long existing law and the pertinent regulations were promulgated through APA[3] notice and comment rule making years ago so, any lawsuit would fail. USCIS could institute such a measure for a short time and again as needed.

The anticipated effects would include mostly positives as follows:

  1. Quick Backlog Reduction of old forms I-924 across-the-board;
  2. Bring closure to long pending cases, one way or the other;
  3. Quickly denying the clearly meritless, skeletal, or naive I-924s;
  4. Allow time to be spent on approving all cases that could be approved with only minor corrections, they can get RFEs or file Motions later;
  5. Protecting EB-5 investors from fraud, especially if ALL Decisions are posted to the website immediately—like BALCA and BIA do;
  6. Allow developers to “move on” and either break ground or seek funding “other than” EB-5;
  7. Put applicants “on notice” of the deficiencies in their initial filings so that they could prepare better filings IF they chose to do so;
  8. Clear the path for new filings for which greatly reduced processing time would ensue;
  9. Suspend across-the-board implementation of this streamlining measure for new applicants who have been “put on notice” and only need a small amount of revision to become approvable; and
    1. Retain limited implementation of this measure to ensure that meritless cases are dispensed with quickly so as to avoid a new backlog;
    2. The negative consequences would be confined to those who:
      1. Continue to submit meritless applications, or
      2. Waste their time, money, and effort filing frivolous lawsuits against USCIS; and
      3. USCIS & DOJ wasted expense of answering meritless lawsuits.

That’s my two-cents, for now!

[1] While I think that this point taken from Matter of Katigbak, 14 I&N Dec. 45 (R.C. 1971), is inappropriately applied at times to inapplicable contexts and forms; and in a Court battle concerning an AAO Dismissal of an I-924 that was based solely and/or primarily on this then USCIS would lose, the initial Denial of the Service Center, District or Field Office Director based upon it could withstand any and all premature Court challenge, due to a failure to exhaust administrative remedies.

[2] There are specific implications of the use of this phrase. “Evidence of Record” may refer to the initial filing or the end product of a series of RFEs and NOIDs, Motions and all materials collected throughout the Appeal process.

[3] Administrative Procedures Act codified as 5 USC, Part I, Chapter 5.

About The Author

Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.