New USCIS Policy Memoranda to Create Additional Obstacles for Employers and Visa Beneficiaries

Hannah F. Little, Esq., Partner
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New USCIS Policy Memoranda to Create Additional Obstacles for Employers and Visa Beneficiaries

United States Citizenship and Immigration Services ("USCIS") recently issued two policy memoranda that will have an immediate impact on business immigration. These two memos will force employers and foreign nationals to be even more diligent and proactive in applying for initial petitions and extensions or else face denials and possibly the immediate commencement of removal proceedings.

Notice to Appear Memo

On June 28, 2018, USCIS issued a policy memo regarding the issuance of Notices to Appear ("NTAs")1. Pursuant to this new memorandum, USCIS will begin issuing an NTA in many more situations than before. An NTA represents the commencement of removal proceedings in immigration court against an individual. When the Department of Homeland Security was originally created, the primary role of USCIS was to adjudicate immigration petitions, and Immigration and Customs Enforcement ("ICE") and Customs and Border Protection were responsible for enforcement of the immigration laws. As a result of the June 28 memorandum, however, USCIS will now play an active role in enforcement.
The new guidance directs USCIS to issue an NTA in every circumstance where an immigration benefit is denied and the applicant is deemed removable including where there is evidence of fraud/misrepresentation or criminal conduct. Most alarmingly, the memo states, "USCIS will issue an NTA where, upon the issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States." For example, a foreign national who timely files an extension to his/her H-1B status and whose status expires while awaiting a decision on the extension, will receive an NTA and be placed into removal proceedings if USCIS denies the extension. Once an NTA has been issued, the foreign national must remain in the United States or be able to leave and come back before the first Master Calendar Hearing (the initial hearing before an Immigration Judge). Failure to appear for an immigration proceeding means that the Immigration Judge would order the individual removed in absentia,2 and he/she would be inadmissible for a minimum of five years.3

It is also important to note that once USCIS issues a denial, an individual will start accruing unlawful presence in the United States. If an individual remains in the U.S. without valid immigration status for over one hundred eighty days but less than one year, s/he will face a three-year bar to returning upon departure.4 If an individual stays in the U.S. for one year or longer, s/he will face a ten-year bar.5 Given that there are currently more than seven hundred thousand cases pending in immigration court, and the average length of the wait for a case is over seven hundred days,6 many individuals who were denied extensions to their visa may end up facing lengthy re-entry bars.

USCIS announced on July 30, 2018 that it will postpone implementation of its issuance of NTAs until a later, undefined date.

Request for Evidence ("RFE") and Notice of Intent to Deny ("NOID") Memo

On July 13, 2018, USCIS issued a policy memo regarding RFEs and NOIDs.7 This Memorandum rescinded the 2013 policy memorandum on RFEs and NOIDs which stated that "If not all of the required evidence has been submitted or the officer determines that the totality of the evidence submitted does not meet the applicable standard of proof, the officer should issue an RFE unless he or she determines there is no possibility that additional evidence available to the individual might cure the deficiency." Now, however, the new policy is that "If all required initial evidence is not submitted with the benefit request, USCIS in its discretion may deny the benefit request for failure to establish eligibility based on lack of required initial evidence." This denial may occur without first issuing an RFE or giving the applicant the opportunity to supplement the application with this initial evidence. The new guidance applies to all petitions and applications filed after September 11, 2018.

What Do These Memos Mean for Employers?

These two memos, together with USCIS’ unwillingness to give deference to prior determinations, demonstrate the tougher stance the government is taking on business immigration. More than ever before, it is important for employers and foreign nationals to be both diligent and proactive in filing initial petitions and extensions. Employers and individuals should apply for extensions as early as possible (six months before expiration) and use Premium Processing when possible. While Premium Processing carries an additional cost of $1225, it means that USCIS will adjudicate the petition within fifteen calendar days. Applying early and utilizing premium processing places the foreign national in the best possible position. In the event USCIS denies the extension, the foreign national will hold valid status on the date of the denial and may then pursue alternative options or depart on his/her own without being placed in removal proceedings. Employers and foreign nationals should also take greater care in preparing initial petitions and must include all required documents. In cases that have faced increased scrutiny from USCIS, such as H-1B petitions for the computer occupations, the Employer may wish to submit additional evidence to bolster the initial filing and minimize the risk of RFE or denial.

Although it is unclear when USCIS will start enforcing this policy, employers and foreign nationals should be aware that it is coming and start planning ahead now. The current shift in immigration policy towards more rigorous enforcement creates additional hurdles for employers and foreign nationals attempting to comply with all immigration laws and procedures. A close working relationship with immigration counsel continues to be essential to ensure proactive strategies for employers and their foreign national employees.

1 PM-602-0050.1 – Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.

2 Immigration and Nationality Act § 240(b)(5)(A).

3Id. § 212(a)(6)(B).

4Id. § 212(a)(9)(B)(i)(I).

5Id. § 212(a)(9)(B)(i)(II).


7PM-602-0163 – Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b).