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Employer Visa Denials Could Jump Under New Policy (1)

July 16, 2018, 2:53 PM; Updated: July 16, 2018, 8:23 PM

Immigration attorneys complained that U.S. Citizenship and Immigration Services has been delaying employers’ visa petitions by increasingly asking for more information. Now, they may just get denials.

The USCIS June 13 issued a new policy memorandum on when agency officers should make a final decision based on the initial application package, without first seeking additional information.

The policy comes on the heels of another new policy that gives the agency the authority to put immigrants into removal proceedings if they’re without legal status when the agency denies a visa request. The two policies combined could put immigrants on a fast track to deportation and leave companies without key employees as they attempt to challenge the decisions.

“Based on their track record,” the ability for an increase in denials from the agency is “alarming,” American Immigration Lawyers Association President Anastasia Tonello told Bloomberg Law July 16.

“You could find yourself in a situation where a case is denied” and the worker put into removal proceedings, “and it turns out you sent the document they said wasn’t there,” she said.

A representative for the USCIS didn’t respond to Bloomberg Law’s request for comment.

Skilled guestworkers on temporary H-1B visas who are waiting for their green cards to become available could see their H-1B extensions denied, even though they’ve been working in the U.S. at the same job for years, said Tonello, the managing partner of Laura Devine Attorneys in New York. And companies could get their petitions selected in the highly competitive H-1B lottery, only to get an arbitrary denial and lose their place in line, she said.

‘One-Two Punch’

“This is the one of the one-two punch,” she said. The “two” was the earlier policy on the USCIS putting immigrants into removal proceedings, she said.

Last summer, employers and immigration attorneys started noticing a spike in requests for evidence, or RFEs, being issued in response to H-1B petitions. The USCIS later released statistics showing not only an increase in RFEs, but also denials.

The additional scrutiny of the visa program for professionals in “specialty occupations” stems from President Donald Trump’s Buy American and Hire American executive order. The H-1B program is the only visa program specifically named in the order as needing an overhaul to protect U.S. workers.

The RFEs have been “ridiculous,” raising concern that the new policy will result in inappropriate denials, Tonello said. “The bases of a lot of RFEs are flawed, or are incorrect, or ask for things that aren’t relevant, or ask for things that were already submitted,” she said.

Under the new policy, USCIS officers have more leeway to deny petitions or applications if they believe there isn’t enough evidence with the initial application package. They also can issue denials if there is “no legal basis” for the visa or immigration benefit sought.

“This policy is 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,” the agency said in the memorandum. “It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.”

Officers also have the discretion to corroborate submitted evidence by checking USCIS or other government files and databases, as well as publicly available information, the agency said.

The July 13 policy replaces one issued in 2013 under the Obama administration, which responded to a Homeland Security Department’s Office of Inspector General finding that USCIS officers were being pressured to approve visa applications.

(Story updated to include additional reporting throughout.)

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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