In recent months, the Trump administration has been working quietly to cut down on legal pathways to immigrate to the U.S. This past Tuesday, a new policy kicked in, allowing officers with the U.S. Citizenship and Immigration Services (USCIS) to outright deny any visa or green card application that is missing evidence or contains an error. The burden then passes to the petitioner or applicant to appeal the erroneous decision.
Previously, officers were required by an Obama-era policy to send notices, giving applicants a chance to correct such problems instead of closing the process. Officers can still choose to do so at their discretion, but they can also opt to skip that step if the application is deemed frivolous. Without the notices, applicants won’t have the opportunity to intervene or make changes before a decision is made, potentially adding months or years of extra paperwork and thousands of dollars in fees to an already lengthy and arduous process. For those trying to renew their visas while still in the U.S., they could be placed in deportation proceedings the moment their visas expire.
USCIS has said applicants sometimes file substantially incomplete placeholder applications, knowing the back-and-forth with the USCIS will buy them time. However, immigration lawyers worry 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. Immigration lawyers call this minefield of paperwork an “invisible wall,” designed to make legal immigration as difficult as possible.
It remains to be seen how broadly the new policy will be used to outright deny even strong applications. The memo said the new policy is “not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.” Apart from technicalities, lawyers have noted an increase in detailed requests for evidence. Some of the new questions fit with Trump’s 2017 Executive Order called “Buy American and Hire American,” which directed the Department of Homeland Security to find ways to make sure specialty work visas are awarded only to the most highly skilled and highest-paid foreign workers, to fill jobs that couldn’t be filled by an American.
To some, the increased scrutiny of work visas is welcome.
In particular, the H-1B visa category has often been the subject of controversy. Intended for high-level workers with specialized skills, it has been used to outsource ordinary jobs. But lawyers argue the stepped-up examinations go beyond what’s required to assess an immigrant’s eligibility and seem intended to simply make the process more burdensome for all immigrants. Under Trump, the extra layer of questions has not been limited to H-1B cases, but applied to all types of work visas, family-based green cards and humanitarian cases. The extra questions are also directed toward people who have lived and worked in the U.S. for more than a decade and are applying to extend their visas.
USCIS policy allows breaks in employment “such as sick leave, pregnancy leave, spousal care and vacation as long as they do not exceed two years.” Employers are just as frustrated as immigrants trying to obtain green cards and visas. On Aug. 22nd, a group of CEOs representing major U.S. companies, including JPMorgan Chase, Cisco Systems, American Airlines, Apple, Coca-Cola and Texas Instruments, sent a letter to DHS Secretary Kirstjen Nielsen with their concerns with recent USCIS policy changes.
“Inconsistent government action and uncertainty undermines economic growth and American competitiveness and creates anxiety for employees who follow the law,” they wrote.
They added: “USCIS actions significantly increase the likelihood that a long-term employee — who has followed the rules and who has been authorized by the U.S. government multiple times to work in the United States — will lose his or her status. All of this despite the Department of Labor having, in many cases, certified that no qualified U.S. workers are available to do that person’s job.”
Note: These problems all harken back to Congressional inaction.
Paul M. Heller, Esq. | Founder & Principal
Heller Immigration Law Group - 25+ yrs
Direct: 650.424.1902 | firstname.lastname@example.org