Administration’s Enforcement Tactics Threaten H-1B Visa Holders
The White House is ramping up its restrictionist agenda with the implementation of new policies aimed at non-immigrant visa applicants, including H-1B visa holders. The past 18 months have seen a series of measures aimed at satisfying the anti-immigrant right by targeting the innocent undocumented, implementing a punitive and overbroad travel ban, pressuring immigration judges to fast-track decisions and imposing restrictions on asylum seekers with the aim of discouraging those seeking refuge in the U.S.
Now professionals who hold H-1B status are in the crosshairs, with harsh new policies designed to increase and accelerate denials of employer-sponsored applications and to immediately shunt unsuccessful applicants into the immigration courts for deportation.
In July 2018, Policy Memorandum intended to take effect in September 2018 which would broaden the agency’s enforcement powers by giving adjudicator’s the enhanced authority to deny employer-sponsored applications without first issuing a Request for Evidence (RFE) of Notice of Intent to Deny (NOID). Settled practice under previous administrations directed USCIS adjudicators to issue an RFE or NOID identifying specific deficiencies and to permit sponsors to supplement the record with additional evidence addressed to the specified deficiencies.
Under the previous guidelines, USCIS adjudicators were directed to issue an RFE or NOID unless there was “no possibility” that the deficiency could be cured with additional evidence. The “no possibility” standard provided applicants with an opportunity to clarify the record or correct an evidentiary deficiency, rather than face an abrupt and expensive denial. Under the new policy, USCIS adjudicators now have broader authority to outright deny applications for H-1B and other benefits without identifying deficiencies and without first offering sponsors and applicants the opportunity to supplement the record.
The “no RFE/NOID” policy seeks to empower USCIS to deny more cases more quickly. A further expression of the Administration’s plans is found in a second Policy Memorandum, issued in June 2018, directing USCIS to start deportation proceedings against individuals whose applications for immigration benefits are denied. This new policy reverses decades of prior practice by encouraging agencies involved in the adjudicatory process to issue Notices of Appear (NTA) – the charging document used to commence deportation proceedings – against individuals whose applications are denied.
These updated guidelines reflect a shift in previous practice whereby USCIS adjudicators would, in appropriate but not all cases, refer denials to Immigration and Customs Enforcement (ICE) for review and the commencement of deportation. Under this practice, ICE officers would review the facts of a case and the alien’s individual circumstances and exercise prosecutorial discretion as to whether the case belonged in the already-backlogged immigration courts. Under the new guidelines, USCIS are encouraged to start deportation proceedings following the denial of an application or petition without first consulting ICE. This new policy means that more cases will be sent to the immigration courts, without regard for the availability of other forms of relief, the severity of an alien’s violations or the alien’s U.S. equities.
These policies are just two among many which reflect the hostility of the Trump Administration towards immigration in general and towards business immigration in particular. Interested members of the business community are encouraged to reach out to elected officials in Washington to voice opposition to policies that hurt American business and American competitiveness with other countries. These policies, in combination with enhanced enforcement, challenges to legal immigration and the expression of harshly anti-immigrant attitudes by the Administration and its supporters, will harm the American economy, as more and more global global citizens say “no” to American restrictionism, and take their business elsewhere.