/>iNo doubt the United States Citizenship Service (USCIS) has noticed what attorneys, petitioners and beneficiaries have noticed recently with USCIS: an increase in Requests for Evidence (RFEs) and Notice of Intent to Deny (NOIDs) leading to denials due to a lack of a “valid signature.” Many of these denials center on differing opinions of “reproduced copies of a signature.” USCIS is interpreting a reproduced copy of a signature to mean only a signature that a petitioner handwrites directly on a form and then reproduces that copy by scanning, faxing, emailing or another electronic method. However, others have assumed a reproduced copy of a signature can include a signature that a petitioner handwrites and then digitally “affixes” to a form. The question arises: does a petitioner have to handwrite his signature directly on the form or can a petitioner handwrite their signature and digitally affix it to the form?
The differing interpretation of what constitutes a “valid signature” is compounded by the recent shift by USCIS in not allowing a person to correct an alleged deficiency for a pending case. While USCIS notifies a party of an alleged deficient signature during a Request for Evidence or Notice of Intent to Deny, USCIS is apparently no longer allowing a party to correct a deficiency.
USCIS’s longstanding policy and practice allowed petitioners to submit replacement pages with original signatures when USCIS raised an issue with a signature while a petition was pending. While USCIS would “reject” a petition in the mailroom if USCIS noticed a signature was missing or deficient, whenever USCIS claimed a deficient signature on a pending application USCIS would allow a petitioner to submit replacement pages with a new signature. This previous policy and practice recognized the significant impact of a denial on a pending petition as compared to petition rejected timely in the mailroom.
The solution to the surge in denials is simple: USCIS should reinstate its longstanding policy and practice allowing petitioners to correct deficient signatures. This would recognize human error and the lack of clarity on the signature requirement. This would ensure that otherwise meritorious cases are not denied simply for technical errors, differing opinions or misunderstanding of the signature requirement.
Restoring the ability to cure is a reasonable, fair approach. Due to the long processing times of petitions, there may be thousands of petitions pending that may be at risk of denial over a technical signature deficiency. Some petitions were filed at a time when USCIS freely allowed an opportunity to correct a deficient signature in response to an RFE or NOID, yet may be adjudicated under a new, unforgiving approach to deficient signatures.
Restoring the longstanding cure policy would promote fairness to petitioners and beneficiaries, improve efficiency for USCIS by avoiding time spent on re-filings, and avoid potential lawsuits against USCIS by those irreparably harmed from the denials.
The Impact of Denials Over Technical Defects
The USCIS Regulations provide that USCIS will reject a petition if it is not signed with a valid signature. When USCIS rejects a petition in the mailroom it typically does so within a few weeks and always refunds all the filing fees. However, sometimes USCIS accepts a petition and questions a signature during the adjudication process, which can be months or even years after the petition was filed. If USCIS denies a petition during adjudication rather than rejecting it upon filing, the USCIS does not refund the filing fees. In addition to the lost filing fees, a denial can have a significant impact on a petitioner and beneficiary.
While some cases may be re-filed, albeit incurring additional filing fees, there are some situations that cannot be remedied through a new filing. For example, if an H-1b cap petition is denied after the limited 3-month deadline to file selected cap cases, the petitioner loses the opportunity for that H-1b for at least that entire fiscal year and perhaps longer if the beneficiary is not fortunate to be selected in the lottery the following year. Similarly, an immigrant petition where the priority date is determined by the filing date at USCIS can incur years of additional processing time for permanent residence if a petition is denied. With processing times more than one year for I-140 petitions and multiple years for I-130 petitions, having to “restart” the clock by refiling is significant. A denial can also affect a foreign national’s legal status, work authorization, or ability to include an aging-out child on a permanent residence application.
Given the high-stakes and significance of immigration petitions, USCIS should allow petitioners to correct alleged signature deficiencies. Too much harm can result from petitions denied over technical issues after months or years of processing; no purpose is served by USCIS denying petitions for technical reasons only to have to adjudicate re-filings or appeals.
The Alleged Deficient Signature
While USCIS may deem different methods of signature as deficient, it seems the most notable is a signature that a petitioner handwrites and then digitally “affixes” the handwritten signature to a form, rather than handwriting the signature “directly” on the form.
This method of handwritten signature – handwriting their signature and affixing it to a form - has been used by some petitioners who find the process of signing documents for USCIS petitions to be burdensome since USCIS has limited electronic filing and does not allow electronic signatures such as DocuSign®. With the rise of remote work, some petitioners work from home without access to a printer and scanner, especially when their job duties are completely digital and their employers do not supply such equipment. A petitioner may have to travel to the corporate office (if it’s nearby) or visit a public place like a library to print a USCIS form, sign it and either scan it or mail it to an attorney to file with USCIS. To streamline this process, some remote petitioners opt to handwrite their signature, save it digitally, and then affix it to the completed USCIS form after reviewing the form. The petitioner can then email the form to the attorney for filing, without the need for a printer and scanner.
USCIS seems to view handwritten signatures “applied” digitally to a USCIS form, rather than written directly on a USCIS form, as either “electronic signatures” or signatures “created by a typewriter, word processor, stamp, auto-pen, or similar device.” However, the ordinary understanding of an electronic signature is one embedded in software where a client consents electronically (either by clicking “agree” and/or typing their name), not one where a person handwrites their signature with pen-to-paper and affixes it to the form. Similarly, the ordinary understanding of a signature “created” by a typewriter, word processor, stamp, auto-pen or similar device is a signature that mimics a person’s handwriting: not a reproduction of their actual handwriting but rather a substitute for a handwritten signature. Signatures “created” by a typewriter, word processor, or stamp are created by choosing a font; they are not intended to replicate a handwritten signature nor necessarily even resemble a person’s actual signature. And signatures “created” by autopen (also called a “robot pen”) or similar device “duplicate signatures without human intervention” using a “robot and computer software” to mimic signatures.
In contrast, the handwritten signatures at issue in the USCIS denials are handwritten signatures. Attorneys and petitioners interpret the USCIS regulatory requirement of a “handwritten” signature to mean a signature that looks the same as how a person normally signs their name. Black’s Law Dictionary defines “sign” as “to affix one’s name to a writing or instrument, for the purpose of authenticating it, or to give it effect as one’s act”(emphasis added). A petitioner handwriting their signature and affixing it to a USCIS form furthers the purpose of a signature: to validate the identity of the signer and their consent to a document.
USCIS Practice Does not Always Match USCIS Policy
To be clear, the USCIS policy and practice on signatures has not remained constant nor consistent.
That lack of clarity and consistency leaves the public confused and susceptible to human error, particularly as a petition may be filed while one policy is in effect but adjudicated years later when a different policy is in place.
The controlling agency authority is the USCIS Regulations. Last amended in 2003 to prepare for electronic filings, the USCIS regulation on signatures states, “an acceptable signature on a benefit request that is being filed with the USCIS is one that is either handwritten or, for benefit requests filed electronically as permitted by the instructions to the form, in electronic format.
Thirteen years later, USCIS issued the first “formal written guidance on the meaning of the regulatory requirement with respect to signatures.” That guidance for paper-based filings: (1) explained who may sign on behalf of a corporation or other legal entity, (2) clarified that a signature did not have to be legible, in English, or in cursive; (3) recognized that the “regulations do not require that a requester submit an ‘original’ or ‘wet ink’ signature on a petition”, affirming that “a signature is valid even if the original signature is later photocopied, scanned, faxed, or similarly reproduced.”
Importantly, that guidance also formalized what may be known as the “cure policy,” distinguishing between petitions “rejected” in the mailroom for missing or deficient signatures and petitions found to have a deficient signature during the adjudication process. That guidance provided that if a request is accepted for adjudication and determined to have a deficient signature, USCIS may ask the person to sign the request, either through a Request for Evidence or at an interview. The specific language is as follows:
If USCIS determines that the requisite signature on the request is not valid, the request will be deemed to not be signed, and pursuant to 8 CFR § 103.2(a)(7), USCIS will reject the request and return it to the responsible party. If a request has been accepted for adjudication and is determined to have a deficient signature, or USCIS has reason to question the validity of the signature, or needs additional information to confirm that the individual is authorized to act on behalf of an individual, corporation, or other legal entity, USCIS may ask an individual, either via a Request for Evidence or other type of notice, or at the time of any interview, to sign the request and/or to verify that he or she is authorized to sign documents on behalf of an individual, corporation, or other legal entity [emphasis added].
The USCIS consistently followed the cure policy, which attorneys and petitioners came to rely on, especially since USCIS sometimes required a method of signature that was contrary to the Regulations and their own guidance. For example, despite the USCIS’s recognition that the Regulations do not require an original signature, USCIS often continued to require an original signature for certain types of petitions. When the American Immigration Lawyers Association (AILA) raised this inconsistency with USCIS – rejecting petitions in the mailroom for lack of original signature despite the regulation not requiring original signature - USCIS responded that the policy affirmation of the regulations controlled unless the form instructions for a petition provided otherwise.
About five years ago, during the Covid-19 pandemic, USCIS stopped requiring original signatures on any petition, thereby adhering consistently to the Regulations rather than disparity based upon the type of form. As such, USCIS allowed “reproduced original signatures” on “all benefit forms”, including forms that required a “wet” signature per form instructions. A little more than two years later, USCIS made the “reproduced signature flexibility” permanent for all forms. Sometime thereafter USCIS, without much publicity, apparently updated the USCIS Policy Manual section on Valid Signatures. The current policy manual states that for a case rejected upon filing for a deficient signature, “USCIS does not provide an opportunity to correct (or cure) a deficient signature.” And “if USCIS accepts a request for adjudication and later determines that it has a deficient signature, USCIS denies the request” although USCIS may issue a Request for Evidence or Notice of Intent to Deny to determine whether the signature is acceptable.
The problem with the recent denials is the USCIS view of what is a “deficient” signature and the inability to cure. These denials have been despite the petitioner affirming the signature is their signature and they consent to the information on the petition.
The Need for the Ability to Correct a Deficient Signature
While the signature issue has led to more RFEs and NOIDs, it is the new “inability to cure a deficient signature” that is the real problem with the denials. There has been an increase in the number of USCIS denials on the validity of signatures, including more appeals to the Administrative Appeals Office. The number of appeals – given that most petitioners opt to refile rather than challenge denials - underscores the lack of clarity about “handwritten” signatures and the detrimental impact of the change in USCIS policy to eliminate the ability to cure a deficient signature
The new policy and practice of not allowing an opportunity to correct (or cure) a deficient signature” is problematic for several reasons. First, the USCIS’s new practice of not allowing a cure for a deficient signature during adjudication is inequitable. USCIS is stretching the inability to cure too broadly. The inability to cure a deficient signature should apply only to petitions rejected in the mailroom and returned to the petitioner, along with the refund of filing fees. In contrast, when USCIS accepts a petition for adjudication, it should allow an ability to correct an unacceptable signature. The USCIS Regulations state that USCIS will reject a petition if there is not a valid signature. While this regulation may be viewed as providing notice to applicants rather than an obligation on the part of the USCIS, it underscores the inequity that results by USCIS accepting a petition and then months or years later determining the signature is deficient and yet not providing an ability to cure an alleged signature deficiency. For instance, H-1b cap petitions for professional occupations subject to a yearly quota have a limited filing period and now that the deadline has passed there is no opportunity to refile. There may be other consequences of a denial: falling out of lawful immigration status, loss of employment authorization, and losing the benefit of a filing date for permanent residence which can potentially delay the green card by several years and affect the eligibility for a child to be included in an application for permanent residence. Second, the USCIS policy to not allow petitioners to correct a deficient signature during the adjudication process is inconsistent with previous long-standing policy. The public did not receive adequate notice of this apparent change in policy or practice. In the 2016 USCIS Policy Memorandum, USCIS stated that if a request is “accepted for adjudication and is determined to have a deficient signature” USCIS may ask an individual to “sign the request”. This policy was in effect for almost a decade.
Third, the USCIS’s practice to not allow petitioners to correct a deficient signature during the adjudication process is inconsistent with previous USCIS practice. Not only was it long-standing policy for USCIS to allow a correction during the adjudication phase, it was also actual USCIS practice. For example, the Nebraska Service Center issued a Request for Evidence in an I-140 Immigrant Petition in 2021, which stated, “Please obtain copies of the original pages or create replacement pages and submit with the original signatures [emphasis added].” The petition was approved after petitioner submitted newly signed forms in response to the RFE. Similarly, the Texas Service Center issued a RFE in an I-140 Immigrant Petition in 2022 which stated, “The signature for the petitioner states ‘Docusigned by” indicating the signature is an electronic signature…..therefore please submit the petitioner’s original signature on a copy of the Form I-140.”The petition was approved after the petitioner submitted a newly signed form in response to the RFE.
Fourth, the USCIS practice to not allow a petitioner to correct an alleged deficient signature fails to take into account that USCIS’s stance on signatures is more stringent than courts and other immigration agencies. Court cases in other areas of the law have upheld a variety of types of signatures, including electronic signatures and signature stamps. Also, other federal immigration agencies accept various forms of handwritten signatures and electronic signatures. For example, the Executive Office of Immigration Review (EOIR) allows handwritten, digital, and electronic signatures on all documents filed with an immigration court or the Board of Immigration Appeals (BIA), regardless of whether the document is filed by mail, in person, or electronically. The Policy Memorandum of EOIR states that a signature can be a “reproduction of the signer’s handwritten signature.”
Similarly, the U.S. Immigration and Customs Enforcement (ICE) accepts handwritten or electronic signatures for Form I-20 and Form I-983, including digitally reproduced handwritten signatures. The ICE policy guidance states that “a digitally reproduced copy may be a scanned image of a physical signature.”
In fact, even the USCIS allows employers to complete and “electronically signed” Form I-9. The electronic signature, allowed in this context, is not applied on a form through the USCIS website, thus not restricted to an “online filing” through a USCIS online account. Rather, USCIS allows employers to create their own copy of Form I-9 and sign by whatever “electronic” signature style desired. Form I-9 is a USCIS form that employers must retain, like forms filed with USCIS. For USCIS to have differing standards for signatures based upon the type of its own forms is perplexing.
The different standard among immigration agencies coupled with the literal language of the regulations simply requiring “handwritten” signatures weighs in favor of allowing petitioners an opportunity to correct deficient signatures.
USCIS can restore the cure policy even without making any change to the existing USCIS Policy Manual. While the current version of the USCIS Policy Manual says “USCIS does not provide an opportunity to correct (or cure) a deficient signature,” that sentence immediately follows the sentence stating USCIS will reject a petition upon filing if it has a deficient signature. The following paragraph, which addresses deficient signatures discovered during adjudication, can be read to mean that USCIS will deny a petition during adjudication if the signature is determined to be deficient AFTER the response to the RFE where the petitioner is not able to cure the deficiency with newly signed forms. In other words, the current policy manual could be interpreted to mean that if the petitioner does not correct the deficient signature with newly signed forms or the newly signed forms are deficient for reasons such as the petitioner not having authority to sign on behalf of a company, then USCIS can deny the petition.
Even if the USCIS policy manual pronounces an inability to cure signatures during adjudication, the USCIS may still allow an ability to cure. As a reminder, the USCIS Policy Manual is not binding; while the Manual is guidance for USCIS officers it “does not remove their discretion in making adjudicatory decisions.”
However, USCIS does it – through a clear change to the Policy Manual or more informally – they need to revert to the previous policy and practice of allowing a cure for a deficient signature. When USCIS issues a RFE or NOID, USCIS should allow the petitioner to cure a deficient signature by providing: (1) an attestation from the petitioner confirming they are authorized to sign the petition, it was their signature, regardless of the method, on the initially submitted form, and they intended to sign the form and consent to the information on the form and supporting documents; and (2) a replacement page containing either a handwritten signature in ink (“wet ink”) on the USCIS form or a photocopy of the handwritten signature written directly on the USCIS form.
Conclusion
We share the USCIS’s desire to maintain integrity of the immigration benefit system. However, the possibility that a certain method of signature may be susceptible to forgery is no basis to reject such method. As the EOIR noted, “any type of signature – wet, digital, or electronic – may be subject to a challenge” as to “its authenticity”. One author noted, “throughout human history, people have embodied their trust in written signatures and other physical marks which, at the same time, have always been susceptible to forgery.”
USCIS should not focus on a technical aspect at the expense of substantive eligibility. The USCIS should be mindful of the purpose of a signature: to validate the identity of the signer and consent of the signer. Of the three elements of a signature – identity, method, consent – USCIS seems to be focusing on the method at the expense of the intent and consent of the signer. The core focus should be whether the signature genuinely originates from the individual it purports to represent and whether that person understood and consented to the content within the document.
The public is relying on the USCIS regulatory requirement of “handwritten,” believing that the purpose of handwritten is for the signature to be consistent with how a person normally signs their name.
In sum, immigration law – including the right to live and work in the United States – should not hinge on a technicality involving the method of a signature when the intent of the signer is clear and verifiable. The USCIS should allow a petitioner to correct an alleged deficient signature when a petitioner does not dispute the originally submitted petition was their own signature and they consented to the contents of the petition.
