H-1B visa: New rules allow outright rejection of applications, deportation

The Trump administration has empowered officials to outrightly reject visa applications under certain circumstances. This step can be taken if the required ‘initial evidence’ wasn’t submitted or it failed to establish eligibility for the visa sought.

The outright denial of the application could even place the employee at the risk of deportation.

The revised policy will apply to all applications and requests received by the authorities from September 11 onwards, according to a report in The Times of India.

The visa applicants that include companies sponsoring H1B employees are less likely to get a second chance to submit more documentary evidence or provide explanations that would substantiate eligibility for the visa.

United States Citizenship and Immigration Services (USCIS) has issued this revised policy on July 13.

“It has rescinded an earlier policy that restricted official’s ability to deny a case without first giving the applicant an opportunity to provide more evidence to prove the case. While the revised policy instructs officials to deny the application, without a Request for Evidence (RFE), only if the case lacks sufficient ‘initial evidence’, it is not yet clear how this term will be interpreted,” states Fragomen, a global firm specialising in immigration laws.

Under the earlier policy, US officials processing visa applications were required to issue RFEs in all cases, unless there was no possibility that the additional document or information could rectify the issue. In its official statement, USCIS attributes the revision as a measure to curb frivolous filings.

On June 28, USCIS announced a new policy memorandum that empowers it to issue a "Notice to Appear" (NTA) order for a person whose visa petition for transfer or extension has been denied. Once the application is denied, the H-1B visa holders are deemed to present "unlawfully in the US."

Moreover, the person would have to stay in the United States, that too without a job, for court hearing by an immigration judge.

Earlier, if the H-1B extension was denied, the visa holders could have left the US on their own and come back to India. However, if the NTA has been issued for someone, he or she has to stay in the US and appear in the court for immigration proceedings.

If he or she leaves, the person will face a ten-year bar on re-entry to the US, according to a report published in The Times of India. Though he can move the court for voluntary departure.

The rules of deportation now seem to have widened as notices for deportation proceedings were earlier restricted to criminal cases only.  

Now merely losing your petition for visa extension can place a person on the same fast-track as a criminal, even if he or she were never arrested or charged before.

The Trump administration failed to meet its deadline for the second time this year to issue a notification on its decision to terminate the work authorisation of H-4 visa holders, mostly Indians who are spouses of professionals having H-1B visas.

The Department of Homeland Security (DHS) had informed a US court in March that it was working to issue a Notice of Proposed Rule Making in June this year.

At the end of the June, the DHS did not give any explanation for not issuing the notice of proposed rulemaking.