The leadership and priorities of U.S. Citizenship & Immigration Services (“USCIS”, previously the “Immigration and Naturalization Service” or “INS”) always reflects the executive administration’s philosophy and approach in any particular era. But rarely has USCIS’s mission been dictated and turned against its primary purpose to “serve” immigrants than under the Trump presidency. The prior administration’s efforts to impede legal immigration and repress U.S. immigrant populations was broadly applied among agencies and varied in its approach. The following is a sampling of the prior administration’s calculated attempts to discourage and deter immigrants in their efforts to live and work in this country.
Employment-Based Green Card Interviews:
Beginning October 1, 2017, USCIS has required applicants for employment-based adjustment of status to attend a personal interview before their green card case can be processed and approved. Previously, the interview requirement was waived in employment-based cases because there is no practical justification for such interviews except in a small group of cases that give rise to public safety concerns or may threaten the integrity of the immigration system.
The new across-the-board interviews have drained limited resources and prolonged the waits for people seeking employment in the United States, as well as those trying to reunite with their families or achieve full civic integration by becoming citizens. The delays resulting from this overbroad policy, and an additional array of similarly unwarranted policies and practices that have directly lengthened processing times, has sown confusion and anxiety in immigrant populations.
Requests for Evidence (“RFEs”):
Similarly, the percentage of cases for which USCIS requests supplemental evidence ("evidence that is often duplicative or irrelevant") skyrocketed under the Trump administration. For example, in the first quarter of fiscal year 2017, USCIS issued RFEs in 60 percent of all H-1B petitions filed, a rate nearly three times as high as in fiscal 2016.
Deference for Prior Approvals:
On October 23, 2017, USCIS issued a policy memorandum that superseded and rescinded prior guidance on giving deference to prior determinations of eligibility (i.e., approvals) in the adjudication of petitions for extension of nonimmigrant status, including rescinding guidance from 2004 and 2015. This move updated their adjudication policy to enforce the same level of scrutiny for both initial applications for certain nonimmigrant visas as well as their extensions, even if the underlying facts remain unchanged from a previously approved visa.
The prior adjudication policy gave deference to the findings of previously approved applications. The changed policy has thrown countless employers, employees, and dependent family members into a state of confusion and unpredictability regarding their employment status and ability to settle in the U.S. despite having been already approved in previous, identical applications.
Notices to Appear (“NTAs”):
On June 28, 2018, USCIS implemented a new policy memorandum which significantly broadened the circumstances in which they may issue a NTA, without having to refer the case to U.S. Immigration and Customs Enforcement (“ICE”). This memo expanded the list of reason for which immigrants can be sent before immigration judges to start deportation procedures against them.
The change particularly impacts legal immigrants who have been denied a certain immigration benefit request (e.g., visa, green card). If their application, petition or benefit request is denied, their presence in the U.S. becomes unlawful. Previously, due to massive removal court backlogs, such individuals were not automatically issued NTAs as they were considered low-risk and, therefore, low priority for deportation.
This new policy resulted in a decrease in applications for legal immigration due to the fear that an adverse decision, for any reason, would result in deportation. This, in turn, pushed more and more immigrants into hiding and increased the vulnerability of their communities as a greater percentage strived to avoid any contact with police and other government authorities.
On August 9, 2018, USCIS issued a policy memorandum that sought to change how days of unlawful presence are counted following a violation of F, M or J nonimmigrant status (e.g., foreign student status). The memorandum would have penalized individuals for status violations starting on the day after the violation occurred. USCIS’s previous longstanding guidance stated that such individuals would be penalized only after USCIS or an immigration judge made a specific finding of a status violation in the course of an immigration proceeding, or an immigration officer found a violation of status in the course of an application for an immigration benefit.
The revised rule would have forced them to leave the country and potentially be barred from returning to the U.S. for three years, ten years, or even permanently. On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction to prevent USCIS from implementing the new policy.
Public Charge Rule:
On February 24, 2020, USCIS’s expanded public charge rule went into effect. Although the rule does not apply to most immigrants, it has caused confusion amongst immigrant communities throughout the U.S. who may stop using vital public benefits programs in fear of jeopardizing their immigration status. In fact, most immigrants who are subject to the public charge rule are ineligible for the benefits programs in the rule.
The expanded public charge rule only applies to people seeking visas to enter the U.S. or those already in the U.S. who apply for lawful permanent residence or a green card. Nonetheless, the revised version of the rule has already resulted in a drop in participation in federal safety net programs among immigrants who fear losing their legal status. Immigrant advocates condemn the expanded rule for the chilling effect has had on immigrant communities. This week, the U.S. Supreme Court announced that it will hear a case which challenges the constitutionality of the rule.
As you can see, under the previous administration, USCIS departed from its primary mission to serve the needs of immigrants in the United States through a variety of administrative, procedural and policy means. Even more, it shifted into a tool for denying immigrants legal benefits and protections while causing fear and confusion in their communities. Combine this with the more egregious acts of cruelty exacted on immigrants by other government authorities including banning the entry of foreign nationals based solely on their religion and country of origin, ICE arrests of immigrants at schools, hospitals and churches, and the separation of minors from their parents and incarcerating them in inhumane conditions.
Immigrant advocates have been heartened by the Biden administration’s stated intent to overturn and cure many, if not all, of these ongoing anti-immigrant policies and measures.