How System Adjudication Influences Application Results

Immigration systems are dictated and influenced by many different factors; the main of which is the government of the jurisdiction itself. Given that immigration tends to be a ‘hot’ topic during most election campaigns, it is safe to assume that if a new government were to come to power you are likely to see some change. In current times, the change is likely to be perceived to be negative for the majority of users. Depending on the specifics, the change could be a new system in its entirety, formalised amendments to an existing system, or different adjudication of an existing system.

The implementation of a new system, whilst potentially detrimental to users overall, tends to at least give clarity and time to adapt. Rarely is a new system implemented immediately, with most governments completing a formal notification and implementation process over a period of time. The same applies to formalised amendments.

Varying adjudication however can cause confusion and uncertainty. What was once previously accepted may no longer be, often with the applicant only finding out once an application has been processed. If an applicant is lucky, they will be given an opportunity to provide additional evidence. Many however are not afforded that opportunity. Governments are tending to move to more objective systems, with more ‘black and white’ interpretations which leaves little room for discretion, however how can a user approach a system which is still subjective in its essence, such as the US’s if the adjudication approach were to change.

Navigating the Challenges of Visa Adjudication 
Typically speaking, if adjudication varies it is not in the favour of the visa applicant. Generally used as a tool to limit those that are successfully awarded a visa, an applicant should be prepared for a higher level of scrutiny, the tighter application of requirements and the application of less discretion in their favour. With a variance in adjudication, specific changes in approach are not generally publicised by the authorities. Reviewing criteria and evidence cynically is paramount. As such, an application ought to be prepared in the strongest possible sense whilst retaining pragmatism. Often the application submission process is burdensome, to add to this potentially unnecessary is not only undesirable but potentially lengthy and costly. Someone with significant exposure to the immigration system in question, such as a legal representative, would be able to aid finding the balance having benchmarked the typical request for additional or new evidence, analysed any trends and thereby determining what is likely to be required.

Challenges in Achieving Uniformity
A system which allows variance in adjudication is likely to allow this both centrally, and in overseas posts. For example, with the US you have the USCIS, the central decision maker within the US and Embassies internationally. With applications submitted at an Embassy, it is vital to monitor any trends as to what has been requested locally as well as posed within any interviews. With subjective systems that allow local decision making, uniformity in application is hard to obtain even with a static and balanced decision making process. It is not uncommon for a particular official to interpret guidance differently to others, resulting in local nuances that are unlikely to be publicised.

The Importance of Timely Application Submission
Needless to say, submitting an application as soon as someone is eligible to do so is vital. Not only in case extra time is needed to navigate any unforeseen challenges but also due to the extended processing times that are likely to be experienced. Greater scrutiny sadly takes time.

Choosing the Right Visa 
Lastly, it is always beneficial to understand whether there is a more favourable mechanism to utilise. For example, an Australian applicant may be looking to apply under the L-1B category which allows transfers of specialist individuals from linked overseas entities to the US. Rather than utilise a highly subjective category, the applicant may well be eligible for E-3 status based on their nationality. With much less areas for scrutiny, the risk of rejection is potentially significantly reduced.

Staying Vigilant Beyond the Initial Steps
It is not just those looking to start their immigration journey that may be caught out by varying approaches. Usually, if a government adopts a stance of varying adjudication, this stance is applied to all or the majority of the immigration components. Therefore, those that have successfully navigated the start of their journey are not necessary ‘safe’ from then on. Care needs to be applied to any extensions or renewals, as well as any permanent residency applications. The green card process within the US is well documented (see our previous article titled: The Employment-based U.S. Permanent Residency Process for details) With possible tighter scrutiny, applicants and their representatives need to be more creative in their approach.

For further information on this topic and more, please contact the Sterling Lexicon immigration team at immigration@sterlinglexicon.com.