As President Donald Trump wages a vocal battle against illegal immigration, his administration has been working more quietly to cut down on legal pathways to immigrate to the US.
On Tuesday, a new policy kicks in, allowing officers with the US Citizenship and Immigration Services to outright deny any visa or green card application that is missing evidence or contains an error. Around 7 million people apply every year.
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, 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 before a decision is made, potentially adding months or years of extra paperwork and thousands of dollars in fees to the already lengthy process.
In the case of those trying to renew their visas while they’re still in the US, they could be placed in deportation proceedings the moment their visas expire.
USCIS spokesman Michael Bars said the policy was changed to cut down on frivolous applications. The agency has said applicants sometimes file substantially incomplete placeholder applications, knowing the back-and-forth with the USCIS will buy them time. “Under the law, the burden of proof is on the applicant,” Bars said, “not the other way around.”
But immigration lawyers worry that there is not enough oversight or clear standards to ensure fair handling. USCIS officers will now have near-complete discretion to make complex judgments behind closed doors.
“They can deny you on the fact that, subjectively, they feel in their mind [the application] is not approvable,” Pierre Bonnefil, an immigration attorney in New York, said.
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. ProPublica spoke with a dozen lawyers and reviewed documentation for several of these cases.
Many responses cited technicalities: One application was not accepted because the seventh page, usually left blank, was not attached. Another was rejected because it did not have a table of contents and exhibit numbers, even though it had other forms of organization.
“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 US 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 US workers are available to do that person’s job.”
Sarah Pierce, a policy analyst at the Migration Policy Institute, said examples of H-1B misuse are “highly concerning,” but she said that there’s no clear data to prove how widespread it is. “We know there are a lot of legitimate employers that use this program as well,” she said.
Pierce said targeted approaches — such as limiting contractors from hiring H-1B workers or going after companies that mainly depend on H-1B workers — would be better solutions than a blanket approach making it difficult for all companies to hire foreign workers.
But Trump has made it clear that he would like to see a reduction in all immigration. “One thing really unique about President Trump is he views not just illegal immigration, but legal immigration through the context of it being a security threat and an economic threat to the United States,” Pierce said.
Even when cases are ultimately approved, Feist says employers have told her they will reconsider going through the process again. Workers stuck in limbo have told her they’re considering other options, too.
Cataliotti agreed the strategy seems designed to frustrate, “so either one or both parties says: Forget it, I can’t do this anymore, the position is gone, or I might as well go to Canada.”