Another day, another instance of the Biden political appointees at the Department of Homeland Security ignoring laws that they dislike.
Instead of going through notice and comment rulemaking, as required under the Administrative Procedure Act, to revise regulations, or getting Congress to pass legislative changes, the Biden administration seems to believe it can unilaterally create its preferred immigration system with impunity. The most recent example was yesterday’s announcement by U.S. Citizenship and Immigration Services (USCIS) that it will allow applicants to submit incomplete applications.
To a casual observer this might not sound like a big deal, but it is.
The requirements for properly filing applications and petitions are clearly spelled out in Title 8 of the Code of Federal Regulations (CFR). Specifically, 8 CFR 103.2 says:
§ 103.2 Submission and adjudication of benefit requests.
(a) Filing –
(1) Preparation and submission. Every form, benefit request, or other document must be submitted to DHS and executed in accordance with the form instructions regardless of a provision of 8 CFR chapter I to the contrary. The form’sinstructions are hereby incorporated into the regulations requiring its submission. Each form, benefit request, or other document must be filed with the fee(s) required by regulation. All USCIS fees are generally non-refundable regardless of if the benefit request or other service is approved, denied, or selected, or how much time the adjudication or processing requires. Except as otherwise provided in this chapter I, fees must be paid when the request is filed or submitted.
Ideally, applicants and petitioners only submit “perfect” applicants and petitions, meaning a completed form with all evidence and fees included that efficiently allows an adjudicator to make an approve/deny decision. Reality is different and the adjudicative process drags on inefficiently.
As a threshold matter, USCIS does not even begin to adjudicate a benefit request until the agency accepts the request and processes the required fees (if any). According to the USCIS Policy Manual, “In order for USCIS to accept a benefit request, a submission must satisfy all applicable acceptance criteria.” The agency explains that this generally means (1) a complete, properly executed form, with a proper signature; (2) correct fees; and (3) the required initial evidence for intake purposes, as directed by the form instructions.
Accepting the form does not guarantee approval for the benefit request; it is merely the threshold requirement that initiates adjudicator review. If the officer is unable to make an adjudicative decision, he or she may issue a Request for Evidence (RFE) to give the requestor an opportunity to supplement the record. When adjudicators issue RFEs, it delays the final determination and contributes to backlogs.
On the other hand, USCIS is supposed to reject benefit requests that do not meet these minimum requirements. As outlined in the Policy Manual, reasons for rejection may include (1) incomplete benefit request; (2) improper signature or no signature; (3) use of an outdated version of a USCIS form at time of submission; (4) principal application error; and (5) incorrect fee, including missing fees or fees in the wrong amount.
In 2019, senior Trump administration political leadership at USCIS discovered that the agency was accepting woefully incomplete Forms I-589, I-612, and I-918 in violation of the form instructions and regulations. For those (understandably) unfamiliar with USCIS form numbers, the three forms at issue are: