August 2, 2018

As you are likely well aware from recent news, the Trump Administration is pursuing a zero-tolerance policy with regard to immigration.  In addition to immigrants entering through the southern border, this same attitude is being applied to legal employment-based immigration.  Three recent policy memoranda, in conjunction with a stark increase in USCIS denials, combine to make it clear that the Administration is seeking to reduce legal, employment-based immigration by doctors, researchers, entrepreneurs, and other business-related occupations.  Following are some key details from the three memos with respect to their impact on employment-based immigration:
NTA Memo: June 28, 2018 USCIS Policy Memorandum 

A Notice to Appear (NTA) is a USCIS form that is issued to a non-U.S. citizen whom the government believes to be removable from the United States.  The NTA states the charges against the foreign national and the alleged violations of statute.  Issuance of an NTA commences removal proceedings against the individual, requiring them to appear before an immigration judge on a certain date to determine whether they should be removed from the United States or whether they are entitled to some form of relief from removal. 

This new guidance instructs USCIS officers to issue NTAs for a wider range of cases, including cases where an application or petition is denied and the individual's underlying status has expired while the request was pending.  For example, if an H-1B extension petition is timely filed, the H-1B worker is able to stay in the U.S. while it is pending and is given 240 days of work authorization after the underlying H-1B petition has expired.  If the H-1B extension is denied for any reason, including government error, USCIS can now automatically issue an NTA to initiate removal proceedings.

Once an NTA has been issued, the individual cannot depart the U.S. on their own without triggering a 5-year bar to readmission.  Given the massive backlog in the immigration courts and the fact that they currently prioritize those cases where individuals are detained, it could take more than a year for an individual to receive an initial court date, during which time that individual would not have employment authorization and would continue accruing unlawful presence (potentially triggering a 3- or 10-year bar from reentering the United States if the removal proceedings are not ultimately dismissed). 

This policy represents an abrupt shift in the role of USCIS in immigration enforcement.  Since its establishment in 2002, USCIS has been charged with administering immigration benefit applications, and has only issued NTAs in limited circumstances, most unrelated to employment-based immigration.
While RSST Law Group makes every effort to prevent applications and petitions from being denied (the trigger for this new policy), given the uncertainty created by the other new policies detailed below, it is becoming harder to predict the outcome of cases.  PLEASE NOTE: On July 30, USCIS announced that implementation of the NTA Memo will be delayed pending operational guidance, so we do not know when the new policy will take effect. 
RFE /NOID Memo: July 13, 2018 USCIS Policy Memorandum

USCIS has released new guidance related to issuing Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), effective for all applications and petitions filed on or after September 11, 2018.  Prior to this new guidance, USCIS was required to issue RFEs in all cases where the application or petition did not clearly establish eligibility for the requested benefit.  In this way, applicants and petitioners were usually given a chance to respond to perceived deficiencies prior to the case being denied, a policy which we rely upon since it is common for USCIS to change their policy interpretations without prior notice, as well as entirely overlook evidence submitted with an application or petition. 

This old guidance is being rescinded.  In the new policy, the USCIS Adjudicating Officer may use their discretion to deny an application or petition without first issuing an RFE or NOID if the officer determines that the required initial evidence was not submitted or fails to establish eligibility for the benefit. 
In the memo, USCIS states that, "[t]his policy is intended to discourage frivolous or substantially incomplete filings ... It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements."  That said, the new policy gives full discretion to the adjudicator to determine whether an RFE or NOID is warranted, and does not otherwise address how to handle "innocent mistakes".   At this point, we do not know how adjudicators will be trained to interpret this discretion; however, we anticipate an increase in denials across the board.
Unlawful Presence Memo: May 10, 2018 USCIS Policy Memorandum

Effective August 9, 2018, USCIS will institute a new policy for calculating unlawful presence for F, J and M nonimmigrants and their dependents. Unlawful presence will begin accruing on the earliest of the following dates:
  • The day after the applicant no longer pursues the course of study or authorized activity, or the day after he/she engages in an unauthorized activity (such as working without authorization);
  • The day after completing the course of study or program (including any authorized practical training and/or grace period);
  • The day after the I-94 expiration if the applicant was admitted for a date certain; or
  • The day after an immigration judge orders that the applicant be excluded, deported or removed.
  • F, J, and M Nonimmigrants who failed to maintain nonimmigrant status before the policy takes effect will start accruing unlawful presence based on that failure on August 9, 2018, unless they already started accruing unlawful presence prior to that date.  
While this policy change involves a rather complicated set of rules, suffice it to say that the new policy has the potential to seriously impact students and exchange visitors and their eligibility for future immigration benefits, including H-1Bs and green cards.  If the nonimmigrant deviates from the activities authorized by their status, it may trigger the accrual of unlawful presence, which will be difficult for employers or attorneys to identify without thorough and honest disclosure from F, J and M nonimmigrants - and may even be difficult for the individuals to determine as some may not be aware they have violated their status.  Accrual of over 180 days of unlawful presence before departing the U.S. results in a 3-year bar prohibiting the nonimmigrant from returning to the U.S., while accrual of one year or more results in a 10-year bar.
Impact of Memos

Taken together, these new USCIS policy changes, as well as those previously announced over the past year, such as the October 2017 policy rescinding deference for previous approvals, have created an environment of increasing uncertainty.  According to the National Foundation of American Policy, the issuance of USCIS denials and RFEs has spiked sharply, and we expect that to continue.  Furthermore, we anticipate a rise in denials with no prior warning, as well as more severe and immediate consequences for those denials.

For a good discussion of these policies, as well as other related policies, see a recent Forbes article.

This evolving approach to employment-based immigration has injected much more volatility into the system, and makes it difficult to assess cases and predict outcomes and timeframes.  In light of these changes, RSST Law Group strongly recommends that all employment-based petitions and applications be filed as early as possible before an employee's status expires (e.g. 180 days for H-1B petitions to extend status).  Furthermore, we recommend that employers budget for premium processing for all eligible cases, since regular processing times are taking close to 6 months for many petition and application types, placing employees at risk.  Unfortunately, employers and employees should be prepared for the probability of RFEs and denials in a greater number of cases as we move forward. 

As always, RSST Law Group will carefully review all new cases in light of these memos, and will continue to advise clients of the potential consequences of these new policies on a case by case basis.
Please note that this News Flash is provided for informational purposes only.  It does not constitute legal advice and is not a substitute for consulting with an attorney.

The Attorneys at RSST Law Group