United States Citizenship and Immigration Services (USCIS) recently issued two policy memoranda that will affect all immigration petitions filed with the agency. While implementation of the policies is still unclear, employers should note the potential impact on employment-based immigration petition filings and analyze critical issues related to foreign national employees currently located and working in the U.S.
On July 5, 2018, USCIS issued memo PM-602-0050.1, “Updated Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens,” or the “NTA Memo.” This policy memo drastically changes the types of cases for which USCIS will issue a Notice to Appear before an immigration judge. An NTA is the charging document that initiates immigration court proceedings in front of a judge who will determine if the individual should be removed (i.e., deported) from the U.S. Once an NTA is issued, the recipient may not leave the U.S. without permission. A person who receives an NTA and does not attend the proceeding will be ordered removed in absentia and will be barred from reentering the U.S. for five years.
The most significant change noted in the policy is that USCIS will issue NTAs where “upon issuance of an unfavorable decision on an application, petition or benefit request, the alien is not lawfully present in the United States.” This change will affect individuals who were in lawful immigration status at the time of filing a petition, but whose status has since expired.
Current rules allow for nonimmigrant extension petitions to be filed up and until the time of status expiration and then allow for a 240-day automatic extension of status and work authorization while USCIS reviews and processes the petition. However, after the issuance of this policy, persons relying on the “240-day rule” could be at risk for removal if their case is denied.
For example, if an H-1B extension petition was filed by the employer prior to the expiration date of the current I-94 record and was within the 240-day automatic extension period, the worker was considered to be in a period of authorized stay granted by the Attorney General. If the H-1B extension petition was denied during this 240-day period, the H-1B worker immediately had no valid underlying immigration status and would just depart the U.S. to plan next steps, including the filing of a new petition. Now, under the new NTA policy, such individuals will have to deal with the NTA and immigration proceedings rather than just a quick departure from the U.S.
There was immediate backlash to the NTA Memo, with immigration practitioners raising concerns as to the manner in which NTAs would be issued and the fact that there was no opportunity for notice and comment prior to the issuance of the memo. Additionally, the U.S. Supreme Court issued its recent decision in Pereira v. Sessions which has also restricted the NTA issuance.
On July 30, 2018, USCIS indicated that because operational guidance to implement the NTA Memo had not been issued, the implementation of the overall policy memo was postponed until further notice.
Once the operational guidance is issued, and more specifics are outlined by the government, additional guidance will be provided about NTA issuance and its impact. For now, employers should file extension petitions as soon as possible (USCIS will accept petitions six months before status expires) and to file petitions with premium processing service to receive a decision in 15 days.
Issuance of Certain RFEs and NOIDs
On July 13, 2018, USCIS issued a second policy memo which gives USCIS adjudicators the authority to deny an application, petition or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). This is another drastic policy change that will result in more cases being denied by USCIS. This memo goes into effect on September 11, 2018.
Current USCIS policy requires USCIS to issue an RFE or NOID unless there is “no possibility that the deficiency could be cured by submission of additional evidence.” The new memo now allows adjudicators to deny cases where “all required initial evidence is not submitted with the benefit request.” This policy raises significant concerns for employers as cases may be denied in error or without giving petitioners/applicants the chance to correct a deficiency. Although we do not know how this policy will be implemented, it is possible cases could be denied where evidence was submitted but missed by the adjudicator or where evidence was submitted but the adjudicator did not think the evidence was sufficient. This leaves open a significant question as to the discretion of individual USCIS adjudicators and consistent application of the policy. Again, it is hard to know how far-reaching USCIS will be in its implementation of this new policy guidance.
In response to this new policy, we recommend employers consider including significantly more information with initial petitions. As additional information is provided and/or we see the impact of this memo on cases filed after September 11, we will provide additional updates.
The Faegre Baker Daniels immigration and global mobility team will continue to monitor these issues and will provide additional guidance when available.