SEPTEMBER 13, 2018
US authorities can now reject a visa application, petition or request — including possibly for H-1B visas — over mistakes and missing documents without offering the applicant a chance to correct the error.
Other applicants affected are those want to stay in the US as lawful permanent residents (on a Green Card) or immigrants, those who wish to stay temporarily and work as non-immigrants, or those applying for US citizenship.
Around seven million such applications are filed and adjudicated every year. However, applicants for short-term visas for travel or business are not expected to be affected.
The new rule, which went into effect on Tuesday, has been called a “major shift” by immigration lawyers, activists and those likely to be impacted. They say the rule could make the procedure more expensive, lengthy, and even lead to deportation, if an applicant already in the US falls out of status.
It will impact Indians on H-1B or other short-term stay and work non-immigrant visas, who plan to seek permanent residency on the Green Card. An estimated 9,800 Indians obtain work-related Green Cards every year.
“All applications, petitions, and requests received after the effective date will be subject to the new policy, except for DACA adjudications,” said a US official on background, referring to the Deferred Action for Childhood Arrivals programme that protects from deportation people who illegally arrived in the US as minors.
“This policy change is part of an ongoing effort to help faithfully execute and protect the integrity of our laws, cut down on frivolous applications, reduce waste, and help ensure legitimate, law-abiding petitioners seeking greater safety, security and prosperity aren’t undermined by those able to game our system,” said Michael Bars, spokesperson for the US Citizenship and Immigration Services (USCIS).
In June, the USCIS said the new rule was intended to “discourage frivolous or substantially incomplete filings” intentionally filed as “placeholder”, essentially to book a place in the queue and start a conversation through the back and forth ensued with a Request For Evidence (RFE) and a Notice of Intent to Deny (NOID).
“It is not intended to penalise filers for innocent mistakes or misunderstandings of evidentiary requirements,” the agency had said.
It replaces an Obama-era rule from 2013 that mandated adjudicating officials of the USCIS to issue REF or NOID in all cases of errors and missing documents, unless the applicant was prohibited under law from being advanced to the next stage.
An activist working with an advocacy group that speeds up the process for Indians waiting in queue for Green Cards, who did not wish to be named, said the new rule is a “major and dramatic shift”. More than 300,000 primary visa-holders from India are in the queue, with the number going up to 1.5 million if one includes dependents and those in the process of applying. According to one estimate, their waiting time is 151 years, at the current rate of clearance of cases.
“The net takeaway (of this measure) is that this is fundamentally a series of connected events that are designed to disadvantage lower-income families and increase deportations,” said Xiao Wang of Boundless Immigration, a company which deals with marriage green cards.