US immigration reverses Trump-era rules

Debangana Ghosh Mumbai | Updated on June 12, 2021

Move will ease barriers to legal immigration, offers relief to several Indian IT companies

In a further relief to Indian techies and IT services companies, the US Citizenship and Immigration Services (USCIS) is repealing the 2018 Trump-era policy that allowed immigration officers to directly reject H-1B visa applications, instead of first issuing a notice of intent to do so.

The move eases the barriers of legal immigration andwill help several major Indian IT companies thatoutsource thousands of talents to the US through H-1B visas every year.

“As per the earlier USCIS memo, for example, if the applicant misses out a document the immigration officer was supposed to ask for it. But the Trump-era memo, removed this requirement, and the application could be directly rejected if there was any missing document. For instance, if you filed a marriage-based petition and you forgot to attach the marriage certificate, the petition could be rejected without having a chance to provide a missing document. Most of the affected cases that may have been those filed by individuals without attorney assistance,” Poorvi Chothani, managing partner of LawQuest, told BusinessLine.

Chothani has immigration law firms with offices in Mumbai, New York and Florida.

Visas offered every year

Law firms and immigration advisories, however, also noted that it won’t make much of a difference in the rate of applications as the number of H-1B visas offered to a company every year is fixed.

“This reduces pressure on Indian IT companies that have employees from India as prior approvals will be taken into account for subsequent extensions. But this might not make a significant difference to approval rates,” Chothani added.

USCIS’ statement said that it was updating its policies around expedited processing of applications, changing the guidance around Requests for Evidence and Notices of Intent to Deny, and increasing the validity period for certain Employment Authorisation Documents.

Earlier, theUS administration under President Joe Biden scrapped the changes to H-1B visa rules introduced by the Donald Trump administration in October 2020. Though the Trump-era regulation never took effect due to a federal court ruling, the US government has formally rescinded it and reinstates longstanding H-1B eligibility criteria.

These rules would have redefined the H-1B specialty occupation, restricted offsite placement of H-1B employees, and otherwise increased employer compliance obligations.

The USCIS is returning to the adjudicative principles of a June 2013 memo.

The more significant change, Chothani pointed out, was the “re-assessment of eligibility” of the existing employees. “Under the Trump administration there was another memo saying that if a person got approved in a particular category in the past, it doesn’t necessarily mean that they would continue to be qualified at the time of extensions. The (immigration) officers had to re-access that person’s eligibility. That was removed last week. That is a big change,” she said.

The updated policy will also give benefit requestors an opportunity to correct unintentional errors through the USCIS officer issuing an RFE or NOID to check on additional information or explanation on required to establish eligibility for an immigration benefit.

“We are taking action to eliminate policies that fail to promote access to the legal immigration system, and will continue to make improvements that help individuals navigate the path to citizenship and that modernise our immigration system,” said Secretary of Homeland Security Alejandro N Mayorkas.

The EAD renewal period, too, is expected to increase from one year to two years for certain adjustment of status applicants, reducing the number of employment authorisation requests USCIS receives in a year.

Published on June 11, 2021

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