Under a new policy that came into effect on Tuesday, visa adjudicators at US Citizenship and Immigration Services are now allowed to deny visa applications or petitions without first issuing a notice of intent to deny or a request for additional evidence. In announcing the policy in July, the agency said the policy was “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.”
Immigration lawyers, however, tell ProPublica that the policy will effectively make it much harder for visa applications to succeed, adding to the various procedural barriers the Trump administration has erected to slow down legal immigration to the US. The attorneys expressed concern that “there is not enough oversight or clear standards to ensure fair handling”:
One reason the lawyers are worried is that they’ve seen a barrage of scrutiny directed at once-standard immigration applications since Trump took office. ProPublica spoke with a dozen lawyers and reviewed documentation for several of these cases.
Many responses cited technicalities: One application was not accepted because the seventh page, usually left blank, was not attached. Another was rejected because it did not have a table of contents and exhibit numbers, even though it had other forms of organization. “It seems like they are just making every single submission difficult,” Bonnefil said. “Even the most standard, run-of-the-mill” application.
The lawyers call this minefield of onerous paperwork an “invisible wall,” designed to make legal immigration as difficult as possible.
This latest policy change comes after the agency tightened standards for H-1B skilled guest worker visas earlier this year. While President Donald Trump has not yet succeeded at implementing the sweeping changes to visa rules he envisions (some of which may require Congressional approval), the administration has taken steps behind the scenes to slow down the issuance of these visas, challenging more applications and issuing numerous requests for additional paperwork. With the new policy, USCIS will be able to deny these applications outright rather than slowing them down.
These changes could have a severe impact on employers who depend on foreign talent like H-1B visa holders, SHRM’s Roy Maurer heard from immigration attorneys when the policy was first announced in July:
Anastasia Tonello, managing partner at Laura Devine Attorneys in New York City and the president of the American Immigration Lawyers Association, pointed out that approval rates for cases after responding to RFEs are high, and about half of the RFEs she’s seen ask for evidence that was in the application but that USCIS staff missed in their review.”The consequences could be really devastating to employers,” she said …
The NTA policy will have a chilling effect on employers looking to hire foreign talent, said Anantha Paruthipattu, founder and principal attorney at Paruthipattu Law Firm, based in Herndon, Va. “It’s too early to say how it will play out, but if it plays out the way the memo reads, it will certainly discourage sponsorship of foreign national talent,” he said. “Businesses do not like uncertainty or unpredictability. They spend a lot of money recruiting skilled foreign workers and spend more money sponsoring foreign nationals for their work visas. Once employees begin receiving NTAs, losing work authorization and being put into removal proceedings, decision-makers will rethink whether they want to go through the trouble of hiring foreign national talent at all.”
Accordingly, a number of major US employers have pleaded with the Trump administration to reconsider its crackdown on legal immigration. In an open letter to Secretary of Homeland Security Kirstjen Nielsen last month, the chief executives of Apple, AT&T, Cisco, IBM, PepsiCo, and dozens of other companies underscored that the administration’s immigration policies were arbitrarily creating unbearable uncertainty for their non-citizen employees and harming these companies’ ability to hire in a tight talent market, creating costs for US companies and undermining their competitiveness globally.