‘Innocent mistakes’ will no longer cost immigrants their green cards or visas

·3 min read

Immigration authorities in the United States have rescinded one of the policies implemented by the Trump administration that had one of the most profound negative impacts on legal immigrants with pending or upcoming applications.

The 2018 policy had granted U.S. Citizenship and Immigration Services (USCIS) adjudicators broader authority to issue case denials over mistakes or missing documents without giving applicants the opportunity to fix them and provide additional documentation.

It “resulted in USCIS denying certain benefit requestors an immigration benefit even though they would have demonstrated their eligibility if given the chance to provide additional evidence,” the Department of Homeland Security agency said in a policy alert issued earlier this month.

The rescinded guidance affected almost all immigration applications, petitions and requests, including U.S. citizenship, permanent residence or green cards and visas.

Even with a green card, an immigrant could be denied U.S. citizenship for these reasons

Traditionally, when applicants don’t submit enough evidence to support their benefit petitions or make innocent mistakes, USCIS adjudicators have issued courtesy warnings known as Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

These notices gave immigrants and their attorneys the opportunity to intervene before a decision was made — avoiding case denials. For some visa holders applying for renewal, a denial could mean being placed in deportation proceedings the moment their visas expired.

But during the Trump presidency, USCIS made a policy change that granted adjudicators full discretion to deny applications without first issuing an RFE or a NOID, when appropriate.

Now, USCIS is returning to the adjudicative principles of a 2013 memo that instructed agency officers to issue an RFE or NOID when additional evidence could help immigrants receive an immigration benefit.

Green cards are only available to immigrants who fall under one of these categories

“This updated policy will ensure that benefit requestors are given an opportunity to correct innocent mistakes and unintentional omissions,” USCIS said in a news release.

“In general, a USCIS officer will issue an RFE or NOID when the officer determines additional information or explanation may potentially establish eligibility for an immigration benefit,” the agency added.

According to the policy alert, the improved guidance:

Explains that an officer should generally issue an RFE or NOID if the officer determines there is a possibility the benefit requestor can overcome a finding of ineligibility for the benefit sought by submitting additional evidence.

Emphasizes that officers should not issue unnecessary RFEs and NOIDs, such as in cases where the officer determines the evidence already submitted establishes eligibility or ineligibility for the benefit sought.

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USCIS said the policy update aims to improve immigration services.

The agency also announced that it will increase the current one-year validity period of an Employment Authorization Document, commonly known as a work permit, to two years for certain adjustment of status applicants.

USCIS has been pulling back some of the changes made during the Trump administration, ever since President Joe Biden signed the Restoring Faith in Our Legal Immigration Systems executive order.

One of the most significant reversals is that the 2019 Public Charge Rule — which blocked path to green cards for low-income immigrants — no longer is in effect.

“We are taking action to eliminate policies that fail to promote access to the legal immigration system, and will continue to make improvements that help individuals navigate the path to citizenship,” said DHS Secretary Alejandro N. Mayorkas in a news release.

Daniel Shoer Roth is a journalist covering immigration law who does not offer legal advice or individual assistance to applicants. Follow him on Twitter @DanielShoerRoth or Instagram. The contents of this story do not constitute legal advice.