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Denials, Requests for Evidence, and Extensions of Stay – 07/20/18 (Updated 9/27/18)

9/27/18 Update: In a stakeholder call on September 27, USCIS discussed its incremental implementation of its policy memorandum about NTAs, which will begin October 1st, and specifically noted that I-129 petitions (which are used to petition for O and P guest artist visas) will not be subject at this time to this new policy. Until announced otherwise, existing guidance for employment-based petitions remain in effect, and USCIS will prioritize cases of individuals with criminal records, fraud, or national security concerns. USCIS will provide updates and information on the new Notice to Appear Policy Memorandum page.

7/31/18 Update: USCIS has announced that it is postponing implementation of its policy memorandum about notices to appear (NTA), pending issuance of operational guidance. It is likely that the policy will be reinstated once USCIS finalizes its guidance, so petitioners and beneficiaries should continue to exercise caution and file any extension of stay or change of status requests well in advance. 

Requests for Evidence:
U.S. Citizenship & Immigration Services (USCIS) has very recently announced a change in policy whereby, effective September 11, 2018, adjudicators at the service centers will have “full discretion” to deny visa petitions without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). It has been the practice for many years that adjudicators will issue an RFE or NOID before a denial, except in extreme cases in which a petition is clearly deniable or the petitioner has requested the wrong category without any possibility of approval.  The RFE process is crucial because it offers petitioners the opportunity to respond and have a chance at securing visa approval.

The July 13, 2018 policy memorandum states:

This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.

However, it also includes the following as an example of a possible denial:

Cases where the regulations, the statute, or form instructions require the submission of an official document or other form or evidence establishing eligibility at the time of filing and there is no submission.

In a September 2018 stakeholder call with the USCIS ombudsman, it was communicated that this RFE/NOID change of practice is not targeting classifications such as the O & P, but rather seeks to curb longstanding filing abuses that abound in other visa categories. Petitioners should still always take great care when assembling all elements of a visa petition, and in the event of unusual delays, RFEs, or denials that are not the result of petitioner error, please notify the service organization affiliated with your field.

Extension of Stay: A June 28, 2018 USCIS policy memorandum may have an impact on artists seeking to extend their stay in the U.S. either under their current status or while seeking a change in status. USCIS adjudicators who determine that a request for an extension of stay will be denied have been instructed to issue a notice to appear (NTA) before an immigration judge to all beneficiaries whose lawful status expires while a petition or request is pending before USCIS. Under this new policy, it will be critical that petitioners file any extension of stay request long before the beneficiary’s current status is set to expire or otherwise advise the artist to depart the U.S. at the conclusion of the current visa period, then file a new petition for new work and undergo the usual process as if engaging the artist for the first time.

The memorandum states:

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.

Given the current uncertainty around as to how USCIS might apply the standard of “lawful presence” in cases of extension of stay requests, it is not presently advisable for guest artists to engage in performance activities (regardless of compensation) in the U.S. after the original visa classification expires and while new visa approval is still pending.

We will continue to keep this website’s guidance up to date as more is understood about USCIS implementation of these policy changes.