6 USCIS Policies from Trump’s Former Term that Affected Visa Holders and Green Card Applicants

The upcoming inauguration of Donald Trump as the nation’s 47th president will undoubtedly herald an era of many changes in the US immigration system. While it is not yet clear what those changes will be, it is helpful to review some of the more notable policy changes that took place during his prior term in office. These include the following:

No Deference to Prior USCIS Approvals

The USCIS Policy Manual is the document that instructs USCIS officers how to adjudicate cases. 2004 Policy guidance directed officers to generally defer to prior determinations when considering petitions to extend nonimmigrant status if the petition involved the same parties and facts as the initial request. This means when an employer was filing to simply extend the nonimmigrant status of an employee, and if there had been no material changes or new facts, USCIS would defer to the prior approval and, in most cases, approve the extension petition without excessive scrutiny.

In 2017, we saw this policy rescinded and replaced with a “no deference” policy. The guidance directed officers to consider each petition as if it were entirely new, without regard to any prior USCIS approvals. This new policy resulted in significantly increased processing times, countless Requests for Evidence, and oftentimes irrational petition denials, despite the fact that there had been no changes in the offered position, the beneficiary’s credentials, or the legal requirements since USCIS had issued the previous approval. USCIS reinstated the 2004 policy in 2021 and now requires supervisory endorsement if an officer deviates from a prior approval.

Denial of Petitions Without Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

In 2018, USCIS again changed their policy guidance to be stricter on the adjudication of applications and petitions. The 2013 Policy Manual made it clear that officers were not to deny cases without issuing an RFE or NOID unless there was “no possibility” of approval. However, the 2018 policy gave USCIS officers complete discretion to deny an application without issuing an RFE or NOID if it was missing any evidence whatsoever. A small mistake could thus result in an outright denial with no prior warning.

2019 Public Charge Final Rule

When considering most applications for Green Cards, USCIS must take into account whether or not a person is likely to become a “public charge,” or someone who primarily relies on the government for support. Until 2019, noncitizens could be identified as a public charge only if they were primarily dependent on the government because they received cash assistance for income maintenance programs such as Temporary Assistance for Needy Families (TANF) or long-term institutional care such as in a nursing home or mental health institution at government expense.

The Public Charge Final Rule published during Trump’s presidency broadened the definition of public charge. Accordingly, certain recipients of Medicaid, Supplemental Nutrition Assistance Program (SNAP), housing assistance, energy assistance, child-care subsidies, and other benefits for more than 12 months within any 36-month period could be considered a public charge. They also introduced Form I-944 Declaration of Self-Sufficiency, an 18-page form that required applicants to provide very detailed information on every part of their finances.  This included an inventory of all assets, including bank accounts, investments, home, and vehicles; plus a credit history, proof of health insurance, and more. If an applicant was not applying for an employment-based Green Card, they also had to provide evidence of their education, occupational licenses or certificates, proof of language skills, and any other information that could prove that they would be employable in the United States.

90 Day Rule for Adjustment of Status Applicants

When foreign individuals seek to obtain most temporary visas, they must have the sole intention of entering on a temporary basis, while maintaining a residence outside the USA of which they have no intention of abandoning.  This includes visas such as B-1 and B-2 visitors, F-1 students, J-1 exchange visitors, and TNs.  There have always been situations where a person does enter with the proper intent, but later changes that intent due to unforeseeable circumstances, such as marrying a US citizen. 

Prior to 2017, USCIS utilized the 30/60 day rule while adjudicating Green Card applications. If a person on a single-intent visa applied for adjustment of status within 30 days after entering the country, the USCIS presumed that the person had misrepresented their intentions when entering the USA. If a person applied for adjustment of status during days 31 to 60, there was a rebuttable presumption that the person had misrepresented their intentions, and the burden of proof would be on the applicant to prove that they had not made a misrepresentation. 

In 2017, the Trump administration issued a new 90-day rule that replaced the 30/60 day rule.  That rule presumed that the person had made a misrepresentation if they applied for adjustment of status within the first 90 days after entering the USA on a single-intent visa.  While the USCIS never officially adopted the 90-day rule (it was a US Department of State rule), many immigration lawyers and clients were cognizant of the 90-day rule and did include it in their Green Card process planning.     

Decoupling of I-129, I-539, and EAD Applications

In 2019, the USCIS officially decoupled the applications for initial grants or extensions of H-1B and L-1 work visa status from simultaneously filed applications for H-4 and L-2 dependent visa status and from applications for employment authorization (EAD).  In the past, if these applications were filed together, they were adjudicated together.  For example, simultaneously filing an H-1B, H-4 and EAD application resulted in all three being adjudicated and approved at the same time.  By decoupling the applications, the USCIS caused severe delays in the adjudication of I-539 and EAD applications, causing a tremendous level of stress and inconvenience for families. 

Mandatory Fingerprinting for All I-539 Applicants

In March of 2019, USCIS implemented mandatory biometrics (fingerprinting) for all I-539 applicants. USCIS charged $85 per person, and the requirement applied to all ages, even infants. Adding this requirement led to significant delays for all applicants, adding months or even years to the process. USCIS suspended the requirement temporarily during the COVID-19 pandemic, and the Biden administration eventually eliminated it in 2023.

While we aren’t sure what the upcoming Trump administration will do, the examples above indicate that we will likely see significant changes.  If you have questions or concerns about your visa or immigration status, now is the time to reach out. Email mike@shermanimmigration.com if you would like to arrange for a consultation.