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.
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For the second year in a row, US Citizenship and Immigration Services has suspended premium processing for all cap-subject petitions for H-1B visas during the filing season for fiscal year 2019, which begins on April 2, Roy Maurer reports at SHRM:
“Premium processing will be delayed … to give USCIS sufficient time to take in the expected large numbers of filings,” said Scott J. FitzGerald, a partner in the Boston office of the global immigration law firm Fragomen. “We do not anticipate that this will delay notification of whether such cases have been selected in the H-1B lottery. Instead, this will delay the time in which the case is approved, subject to a request for evidence, or denied.” …
“The fact that USCIS is only now finishing up its processing of H-1B cap cases filed at this time last year is absolutely unprecedented,” FitzGerald said. “These delays are presumably related to the substantial increase in the issuance of RFEs for those cases. The fact that these cases, filed under regular processing, are receiving final determinations almost a year after they have been filed and almost five months after the requested start date [Oct. 1] is disappointing and seems a clear reflection of the agency’s new and tougher mission statement.”
Quartz’s Ananya Bhattacharya adds that the suspension will likely have a negative impact on the India-based outsourcing firms like Infosys and Tata Consultancy Services that are the most extensive users of the H-1B program, as well as the Silicon Valley tech companies that count on skilled foreign workers hired on these visas to meet their insatiable demand for talent.
US President Donald Trump criticized H-1B skilled worker visas on the campaign trail and came into office pledging to crack down on what he sees as abuses of the program that hurt Americans’ job prospects. Trump’s hard line on H-1Bs has upset parts of the business community, particularly the tech sector, which relies on these visas to fill critical roles in high-skill fields like software engineering where US talent is scarce. Despite the president’s opposition to the program and some movement in Congress around reforming it, this year’s H-1B application process opened earlier this year with no rule changes.
Nonetheless, Trump’s government has taken some steps to limit or discourage the use of the H-1B. Trump issued an executive order in April calling for a crackdown on “fraud and abuse” within the H-1B and other visa programs, while the Justice Department has warned employers that it will prosecute companies who overlook American workers to sponsor H-1B visa holders. The administration temporarily suspended premium processing of H-1B visas this year, has slowed down visa processing for business travelers, and has tightened standards for renewal of the skilled work visa.
In other words, Joshua Brustein reports at Bloomberg, “a crackdown has been in the works, albeit more quietly,” and that crackdown has also included an increase in the number of H-1B applications being challenged:
The US government, Axios reported earlier this week, has issued new policy guidance that will make it more difficult for holders of employment-based visas like the H-1B to renew them:
Currently, immigration officers reviewing visa extension applications defer to prior eligibility decisions for that visa — which means if a person was found to be eligible for an initial work visa, they would usually be considered eligible for an extension of that visa. But in a memo released late Monday, U.S. Citizenship and Immigration Services rescinded that policy and instructed its officers to apply the same level of scrutiny to both initial petitions and extension requests, consistent with policies “that protect the interests of U.S. workers.”
This guidance is a continuation of the administration’s efforts to crack down on what President Donald Trump and other H-1B critics say is widespread abuse of the visa system. SHRM’s Roy Maurer breaks down what this change means for employers of work visa holders: