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Little Mistakes Could Have Big Consequences for Visa Applicants

Following a trend we have seen since President Trump took office, the U.S. Citizenship and Immigration Services (“USCIS”) recently issued new guidance making it more difficult for applicants — and potentially more expensive for employer sponsors — to get work visas.

On July 13, 2018, the USCIS issued a policy memorandum which both makes it easier for adjudicators to refuse visa applications and grants adjudicators greater authority to investigate claims. Rescinding Obama-era guidance, the memorandum broadens an adjudicator’s discretion to deny applications, petitions, and requests without issuing a Request for Evidence (“RFE”) or Notice of Intent to Deny (“NOID”). An RFE requests more evidence from applicants and a NOID informs the applicant and sponsor of the adjudicator’s preliminary decision to deny an application unless the applicant responds in 30 days. It also opens the door for adjudicators to issue multiple and follow-up RFEs.

Prior to this new memorandum, the USCIS’s policy had been to deny an application without issuing an RFE or NOID only if there was “no possibility” that the deficiency could be cured by submission of additional evidence. The new guidance goes into effect on September 11, 2018, and applies to applications received after this date.

Depending on how adjudicators apply this new guidance, it is possible these changes will result in more denials of potentially meritorious applications without any chance to correct applications or submit additional information. It may also result in more RFEs generally — which are especially costly to employers. Employers should consider these new rules and their potential application in determining whether it makes financial sense to sponsor an applicant. It is also crucial for employers to marshal every bit of evidence supporting the application from the outset to avoid potential denials and costly RFEs. As a result, employers should play an active role in the application process by diligently reviewing applications to ensure that all relevant and helpful evidence has been included.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.