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More subscription to our online content can only help us achieve the goals of offering you even better and more relevant content. We believe in free, fair and credible journalism. Your support through more subscriptions can help us practise the journalism to which we are committed. Support quality journalism and subscribe to Business Standard. Digital Editor<doc-sep>The Trump administration has given its immigration officials more power to reject H-1B visa applications outright. US Citizenship and Immigration Services (USCIS) adjudicators will have full discretion to deny applications, petitions, and requests without first issuing a request for evidence (RFE) or notice of intent to deny (NOID), when required initial evidence is not submitted or the evidence of record fails to establish eligibility. The change will come into effect from 11 September. This means USCIS adjudicators can deny visas if applications do not include all the necessary information when submitted. According to Indian IT trade body Nasscom, the work visa-related changes could mean that the USCIS can initiate removal proceedings if a person’s H-1B visa expires, even while he or she is waiting for an extension request to be adjudicated. “For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, the USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits," said USCIS Director L. Francis Cissna in a statement on 13 July. “Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws." Nasscom also said the US move will have “potentially serious adverse consequences" on the American economy as it will make it more difficult for companies to employ skilled foreign nationals to plug critical skills gaps in the US Besides, a memo issued on June 28 switches the authority to issue notices to appear (NTAs) in most instances from US Immigration and Customs Enforcement (ICE) to the USCIS. “This policy memorandum, combined with others previously announced, will harm US companies and discourage the best and brightest globally from wanting to work in the US and contribute to the US economy," Nasscom added. With inputs from PTI Subscribe to Mint Newsletters * Enter a valid email * Thank you for subscribing to our newsletter.<doc-sep>Case Study MUMBAI: Many H-1B visa holders could find themselves facing deportation proceedings if their application for a visa extension or change of status has been rejected and the tenure of stay granted originally by the US authorities (as reflected in Form 1-94) has expired. To make matters worse, despite no longer holding on to a job, they would have to stay on in the US for several months, waiting to be heard by an immigration judge.A policy memorandum, dated June 28, which came into the public domain last week, permits the US Citizenship and Immigration Services to issue “notices to appear” (NTA) in cases “whereupon denial of an application or petition, the applicant is ‘unlawfully present’ in the US”. Such a notice is the starting point for removal or deportation proceedings.According to an immigration counsel at an IT company, “It appears that all cases where an application for visa extension is denied, post expiry of the original tenure of stay that was granted, will be issued an NTA.”Notices for commencement of deportation proceedings were restricted to cases relating to fraud, criminal charges or denial of asylum or refugee status, but the ambit now stands widened.On being served notices to appear (NTA), the nightmare begins. “Once an NTA has been served, the individual must remain in the US and appear before an immigration judge. A failure to appear for removal proceedings carries a five-year ban on re-entry to the US,” says Snehal Batra, managing attorney, NPZ Law Group.Read also: Ban on spouses of H-1B visa holders may push 1 lakh people out of jobs Earlier, on being denied an H-1B extension, the employee concerned could immediately return to India without the NTA-related hassles. His employers could reapply for a fresh H-1B in the next season.“Even international students are not immune to deportation proceedings. Unauthorised employment, failure to enrol in classes or failure on part of the educational institute to update a student’s records could result in an unlawful status for students and issue of a NTA,” adds Batra.Benjamin Johnson, executive director, American Immigration Lawyers Association, points out that the immigration court backlog, as of May 31, exceeded seven lakh cases. Typically, a majority of H-1B holders are not those on initial visas but on extended visas. Statistics show that during the 12-month period ended September 30, 2017, US authorities approved 3.65 lakh H-1B visa applications, of which only 1.08 lakh, or 29.5%, were for initial employment. Nearly two lakh Indians got visas for continued employment.“The revised policy could result in a horrendous situation. As the H-1B extension has been denied, the employee can’t work, but he has to linger on in the US for several months to appear before the immigration court,” says the corporate counsel.“Once removal proceedings have commenced, the individual concerned can leave only after an immigration judge grants voluntary departure,” says Cyrus D Mehta, managing partner of Cyrus D Mehta and Partners, an immigration law firm. “As the dockets of these judges are backlogged, it can take a few months to get a first hearing and then qualify for a voluntary departure,” he adds.In case of H-1B workers, the trigger for denial of visa extension, would typically result in an NTA being served. The two are intricately linked in more ways than one. Mehta explains: “After denial, the erstwhile H-1B worker starts accruing unlawful presence. If the grant of voluntary departure is issued more than one year from the date of denial, there will be a ten-year bar to re-entry.”The denial of extension of the visa by the USCIS can be appealed against, but this itself is time consuming. Assuming that, the denial is reversed, the immigration judge may drop the deportation hearing, or the individual can move court for termination of the deportation process.“A pending green card application, provides no protection against issuance of an NTA for a denied H-1B request. The only point at which an individual becomes safe from this consequence is when they are at the last step of the green card processing, referred to as ‘Adjustment of Status’. This step kicks in only as and when someone’s priority date becomes current, which for Indian born applicants can be decades,” says Rajiv S. Khanna, managing attorney at Immigration.comIt remains to be seen how this will pan out. David Nachman, managing attorney at NPZ Law Group says, “This guidance policy memorandum may be more of a wish list by the administration. Or it could be attempt to send another chilling effect through the industry to establish a warning to H-1B holders that they need to be mindful that they do not fall out of status. It would also let the voters know that the Trump administration will not tolerate individuals who are not in proper H-1B status.”An H-1B holder can continue to live and work in the US for up to 240 days while the application for extension of his visa is pending as long as the extension application was filed prior to expiry of the tenure in his original H-1B visa.As USCIS takes considerable time to process the extension applications, it’s likely that the period in the original H-1B visa has expired and the employee’s stay in the US is solely dependent on the 240-day work authorisation.If the application for extension is denied, the individual would be held as “unlawfully present” as on the date of denial and USCIS can issue an NTA and deportation proceedings would commence.Visa extension applications can no longer be taken lightly as the denial rate, on various grounds, is on the rise. Says Rajiv S Khanna, managing attorney at Immigration. com: “USCIS takes more than six months to adjudicate an H-1B application . In many cases it is inevitable that the previous H-1B status will expire while the application is still pending. Thus, applications should be filed at the earliest. For extension of H-1B visas, applications can be filed up to six months before the expiry of the existing visa tenure. Second premium processing must be opted for, which is more expensive but entails a shorter processing timeline.”<doc-sep>LONDON: The UK government has caused outrage with its decision to exclude Indian students from a new list of countries considered "low risk" in order to facilitate an easier visa application process to UK universities.In changes to its immigration policy tabled in Parliament yesterday, the UK Home Office announced a relaxation of the Tier 4 visa category for overseas students from around 25 countries.On a list already covering countries like the US, Canada and New Zealand, the Home Office has added on the likes of China, Bahrain and Serbia as countries from where students would face reduced checks on educational, financial and English language skill requirements to study at British universities.The changes, which come into effect on July 6, aim to make it easier for international students to come to study in the UK.However, India has been left out of this new expanded list, which means Indian students applying for similar courses will continue to face rigorous checks and documentary requirements.Lord Karan Bilimoria, Indian-origin entrepreneur and President of the UK Council for International Student Affairs (UKCISA), described the move as an "insult" to India and another example of Britain's "economically illiterate and hostile attitude to immigration". "I consider this another kick in the teeth for India ... This sends entirely the wrong message to India, to exclude it from these Tier 4 measures. The government has simply got it wrong," said Bilimoria, while welcoming the overall visa relaxation measures introduced by UK home secretary Sajid Javid.Bilimoria, the founder of Cobra Beer and founding-chair of UK India Business Council (UKIBC), added, "It is completely hypocritical that this is announced at the same time that Britain is talking about doing a post-Brexit free trade agreement (FTA) with India. If this is the way they treat India, they can dream on about an FTA with India". "India has always been one of Britain's closest allies and an emerging global economic superpower. Excluding India from this list is myopically short-sighted and is damaging what has always been a special relationship between our countries," he said.The National Indian Students and Alumni Union (NISAU) UK also expressed disappointment at India's exclusion from the list, which it said effectively categorises Indian students as "high risk". The representative body for Indian students in the UK said it was unfair that Indian students should be treated differently from Chinese or other nationals on the list. "It is important to note that today's announcement makes no change to the process of application for Indian students, but it is the perception of this message among Indian students that worries us. And, this raises another question - will China continue to get even more favourable actions while India gets the rhetoric," questioned Sanam Arora, president of NISAU UK.According to latest Office of National Statistics (ONS) data, India is among the top three countries from where overseas students come in to study at UK universities, followed by China and the US. While Indian students registered a hike of 30 per cent to hit 15,171 Tier 4 visas last year, the numbers remain a far cry from around 30,000 six years ago.The latest development will add to growing concern within Indian government circles, given that ministers and diplomats have repeatedly highlighted the need for a more welcoming immigration regime for Indian students.Last week, Indian High Commissioner to the UK, YK Sinha, held a meeting with the UK's minister for universities, Sam Gyimah, during which he once again raised the issue of "smoother and greater student and faculty mobility between the two countries". "It is unfortunate that in the last six years we have seen a steep drop (in Indian student numbers). What should be troubling universities here is that Indian students are now going in much greater numbers to the US, Australia - even France and Germany," Sinha has said in the past.The UK Home Office said in order to make it easier for students to come and study in the UK's world-leading education sector, it has expanded the list of countries from which students will be able to benefit from a streamlined application process. "Students from an additional 11 countries, including China, will be able to provide a reduced level of documentation when applying for their Tier 4 visa," the Home Office statement notes.On being asked why India had been omitted from this expanded list, a spokesperson said, "We welcome Indian students who want to come to the UK to study at our world-leading educational institutions. We issue more visas to students from India than any other country except China and the USA. "The Home Office stressed that 90 per cent of Indian students who apply for a UK visa get one, a figure up from 86 per cent in 2014 and 83 per cent the year before that.It added, "In addition, the proportion of Indian students coming to study in the UK at a university has increased from around 50 per cent in 2010 to around 90 per cent in 2016. Indian student visa applications are up 30 per cent on last year. We continue to have regular discussions with the Indian government on a range of issues including on visas and UK immigration policy," it said.<doc-sep>
America’s top visa issuing authority the US Citizenship and Immigration Services (USCIS) has lobbed a new policy memo into circulation that makes it quick and easy for its officers to deny an application (including H1B) without first having to issue the typical request for evidence (RFE) or even a notice of intent to deny (NOID). New York: America’s top visa issuing authority the US Citizenship and Immigration Services (USCIS) has lobbed a new policy memo into circulation that makes it quick and easy for its officers to deny an application (including but not limited to foreign workers, H1B) without first having to issue a request for evidence (RFE) or even a notice of intent to deny (NOID). This updated guidance comes into effect from 11 September 2018. Immigration lawyers are still poring over the fine print but some initial reactions have come in. The 13 July memo follows exactly 14 days after the USCIS bunged in updated guidelines on the circumstances in which it can slap the (dreaded) notice to appear (NTA) before an immigration judge. USCIS makes it clear that an NTA “commences removal proceedings” against the alien and this method will now apply to a “wider range of cases”. USCIS has deliberately made it more difficult to win H-1Bs, so under new cynical NTA policy if an H-1B extension is arbitrarily denied after expiration of prior H-1B status, the skilled worker could be placed in deportation proceedings even while challenging the denial — Cyrus Mehta (@cyrusmehta) July 6, 2018 The USCIS rationale USCIS director Francis Cissna says both memos are an “overdue policy change” that restores “full discretion to our immigration officers to deny incomplete and ineligible applications”. “For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners.” “Could result in more denials” Top immigration attorney based in New York Cyrus Mehta says the fallout could mean ever more denials, especially when seen in the context of the entire cascade of recent memos. You could take a month-long view or an 18 month long view of this but the screw tightening has been relentless. In the new scheme of things, a USCIS officer can deny a case without giving the applicant a chance to correct the flaw or provide secondary set of documents. “USCIS’s latest policy memo gives authority to deny applications based on lack of "sufficient initial evidence" without a request for evidence or notice of intent to deny. This could be viewed subjectively resulting in more denials than notice to appear (NTAs)”, says Mehta. The 13 July memo reverses previous guidance that allowed USCIS officers to deny cases only when there was no possibility that the application could be corrected on an iterative basis. What’s in the 28 June memo? Barely two weeks ago, on June 28, USCIS slapped down another memo which could potentially put H1B workers into deportation proceedings even while he or she is challenging a denial. “USCIS has deliberately made it more difficult to win H-1Bs, so under new cynical NTA policy if an H-1B extension is arbitrarily denied after expiration of prior H-1B status, the skilled worker could be placed in deportation proceedings even while challenging the denial”, Mehta told Firstpost. “Mathematically impossible” to apply early enough Read together, the 28 June memo and the 13 July memo can potentially put any foreign worker including H1B into a lock step. Consider, for example the current processing times of 9 - 12 months for extension of stay or change of status. Even a person who applies six months ahead may not get an answer by the visa expiry date. David Isaacson who is Mehta's partner at the same law firm explains the cold reality of this strange situation: “Indeed, if a tourist or business visitor admitted for 6 months wishes to apply for an extension of stay or change of status, it would be mathematically impossible to do so far enough in advance to avoid this consequence in the event of a denial, because the projected processing time is longer than their entire initial period of admission!” USCIS says new policy is to discourage “placeholder” filings USCIS says the new policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.