Harsh New Immigration Application Policy Now in Effect

Effective September 11, 2018, U.S. Citizenship and Immigration Services (USCIS) now can deny applications that are missing any supporting documents when filed.

As we noted in a prior post, in the past, as long as an application was completed, signed, and included the correct filing fee, USCIS would send either a request for additional evidence (RFE) or a notice of intent to deny the application, giving the applicant 87 or 30 days, respectively, to respond.

Under the new policy now in effect, USCIS can simply deny any application that is not absolutely perfectly prepared.  This will especially harm those applying for residency or work permits on their own without competent legal representation –  who often are lower-income.

When USCIS denies an application for any reason, even just for an administrative, not an eligibility issue, there is no refund of the filing fee.  Low-income income individuals often must save money for months or longer to  afford the USCIS filing fees.  For example, the application fees exceed $1700 for residency based on marriage.   Under the new policy, just failing to include a proper translation of a foreign birth certificate with that application will result in denial.  It could be months before the couple has enough money to refile the application, and in the meantime, typically the applicant will be unable to work, and likely will be at risk of removal from the U.S. and from her/his spouse.

Even applicants for employment-based temporary visas or permanent residency will be prejudiced under the new policy if s/he, or a rushed or inexperienced attorney, makes a mistake when preparing the application packet.   A denial as opposed to an RFE can expose the applicant to being out of status, unable to work legally, and forced to leave the U.S. to process at a U.S. consulate abroad.   The employer will be deprived of the employee for months or even years, in certain situations.

This new policy is one of many adopted by the current administration that takes aim at those trying to follow the law to come or stay in the U.S.    These policies are making it harder for families to reunite or stay together, and for employers to get and keep the talent and the workforce that they need.

Earlier in 2018, USCIS stripped the phrase that we are a “nation of immigrants” from its mission statement.   But immigrants have built this country and keep the nation vibrant and our economy strong.  As repeated studies have shown, we shut down immigration at our peril, and the business community needs to speak out and oppose administration policies that work against our historic values and our economic interest.  Many are already doing so, but the drumbeat needs to grow louder.

Note:  Employers should talk with their immigration legal counsel about the impact that this policy change could have on any immigration applications to be filed on behalf of or by their employees.