H1B: New USCIS policy makes it easier to refuse visa applications without RFE; apply early but brace for headwinds, says top immigration lawyer Cyrus Mehta

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By Nikhila Natarajan

New York: America’s top visa issuing authority the US Citizenship and Immigration Services (USCIS) has lobbed a new policy memo into circulation that makes it quick and easy for its officers to deny an application (including but not limited to foreign workers, H1B) without first having to issue a request for evidence (RFE) or even a notice of intent to deny (NOID).

This updated guidance comes into effect from 11 September 2018. Immigration lawyers are still poring over the fine print but some initial reactions have come in. The 13 July memo follows exactly 14 days after the USCIS bunged in updated guidelines on the circumstances in which it can slap the (dreaded) notice to appear (NTA) before an immigration judge.

USCIS makes it clear that an NTA “commences removal proceedings” against the alien and this method will now apply to a “wider range of cases”.

USCIS has deliberately made it more difficult to win H-1Bs, so under new cynical NTA policy if an H-1B extension is arbitrarily denied after expiration of prior H-1B status, the skilled worker could be placed in deportation proceedings even while challenging the denial

— Cyrus Mehta (@cyrusmehta) July 6, 2018

The USCIS rationale

USCIS director Francis Cissna says both memos are an “overdue policy change” that restores “full discretion to our immigration officers to deny incomplete and ineligible applications”.

“For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners.”

“Could result in more denials”

Top immigration attorney based in New York Cyrus Mehta says the fallout could mean ever more denials, especially when seen in the context of the entire cascade of recent memos. You could take a month-long view or an 18 month long view of this but the screw tightening has been relentless.

In the new scheme of things, a USCIS officer can deny a case without giving the applicant a chance to correct the flaw or provide secondary set of documents.

“USCIS’s latest policy memo gives authority to deny applications based on lack of "sufficient initial evidence" without a request for evidence or notice of intent to deny. This could be viewed subjectively resulting in more denials than notice to appear (NTAs)”, says Mehta.

The 13 July memo reverses previous guidance that allowed USCIS officers to deny cases only when there was no possibility that the application could be corrected on an iterative basis.

What’s in the 28 June memo?

Barely two weeks ago, on June 28, USCIS slapped down another memo which could potentially put H1B workers into deportation proceedings even while he or she is challenging a denial.

“USCIS has deliberately made it more difficult to win H-1Bs, so under new cynical NTA policy if an H-1B extension is arbitrarily denied after expiration of prior H-1B status, the skilled worker could be placed in deportation proceedings even while challenging the denial”, Mehta told Firstpost.

“Mathematically impossible” to apply early enough

USCIS director Francis Cissna. Reuters

Read together, the 28 June memo and the 13 July memo can potentially put any foreign worker including H1B into a lock step.

Consider, for example the current processing times of 9 - 12 months for extension of stay or change of status. Even a person who applies six months ahead may not get an answer by the visa expiry date. David Isaacson who is Mehta's partner at the same law firm explains the cold reality of this strange situation: “Indeed, if a tourist or business visitor admitted for 6 months wishes to apply for an extension of stay or change of status, it would be mathematically impossible to do so far enough in advance to avoid this consequence in the event of a denial, because the projected processing time is longer than their entire initial period of admission!”

USCIS says new policy is to discourage “placeholder” filings

USCIS says the new 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. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.

Given the new normal, Mehta suggests H1B extension petitions should be filed well in advance of the expiry date - the law allows six months prior - so that a decision or general tilt is known while the applicant is still in status.


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