Immigration Alert: Significant Procedural Policy Changes

Published on August 13, 2018

Significant procedural policy changes already implemented and on the horizon: United States Citizenship and Immigration Services (USCIS) Rescission of Deference impacting non-immigrant visa extensions, the ability of USCIS to issue a Notice to Appear (NTA) after an application is denied, and ability of USCIS to deny a benefit, application, and petition without issuance of a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

Of the numerous USCIS policy changes, one which has already affected employment immigration is the new policy rescinding prior deference for previously approved nonimmigrant visas, for example, H-1B and L-1visas.

On October 23, 2017, USCIS rescinded a prior 2004(1) memo providing deference to previously approved nonimmigrant visa petitions. The effect of this rescission can be seen in the increased scrutiny placed on previously approved petitions. For petitioning companies, this means that USCIS is often requesting company records that date back years. For example, an employee who entered on an L visa three years ago, and is now seeking an extension, may have to provide company records from four years ago or even longer, depending on the initial filing. While most corporate clients have secure internal policies and sufficient documentation to show this, the hardest hit companies are ones without strong internal human resource policies or secure international coordination between affiliates. Therefore, we would advise companies, especially multi-national corporations, to standardize human resources policies, particularly in retaining critical employee documentation for teams with employees who are currently in H or L status or potentially might be sponsored for H or L status.

Of the proposed policy changes set to take effect within the next months, one of the most concerning is the expansion of Service’s authority to issue a Notice to Appear, a charging document which puts and immigrant into deportation proceedings after denial of a petition or application. On June 28, 2018, USCIS issued a new policy memorandum significantly expanding the Service’s authority to issue a Notice to Appear (NTA) upon denial of a nonimmigrant or immigrant petition. A Notice to Appear is a charging document instructing the individual to appear in immigration court for removal proceedings. The consequence of an issued NTA is very harsh.(2) If the individual departs from the United States after receiving the NTA and fails to appear in immigrant court, this failure to appear triggers a five (5) year bar on re-entry to the United States. If the individual chooses to remain in the United States and fight the removal proceedings, he or she is accruing unlawful status and cannot work in the United States during this removal process. As of July 30, 2018, USCIS has clarified that implementation of the Notice to Appear policy memorandum is postponed until the issuance of accompanying operational guidance, which is to be issued within 30 days.(3)

On July 13, 2018, USCIS further changed their policies on the issuance of a Request for Evidence (RFE) and a Notice of Intent to Deny (NOID). Effective September 11, 2018, USCIS may outright deny petitions deemed filed with insufficient evidence, or without a necessary form instead of issuing a RFE or a NOID prior to issuance of a denial.

These policy changes increase the risks of filing a petition as well as the importance of providing sufficient evidence and documentation with the initial filing. An experienced immigration attorney may help companies determine the type of documentation as well as brainstorm potential creative ways to prove a case without divulging too much corporate information or providing too much corporate documentation. These policies, along with the already enacted USCIS policy changes, have drastically increased the burden on petitioning companies to provide more corporate information as well as the inherent risks involved in any immigrant or nonimmigrant petition filing.

(1) See Memorandum from William R. Yates to Service Center Directors (Apr. 23, 2004) (directing adjudicators to provide deference to previously approved nonimmigrant visa petitions. This directive streamlined the H-1B and L-1 processes for business visas and provided a more secure avenue for skilled professionals from backlogged countries, namely China and India, with an already approved Form I-140 to stay and work in the USA while their priority dates have yet to become current, as these individuals often have to file multiple H-1B extensions before their priority date becomes current. While this avenue still exists, these new policy changes have placed significant roadblocks in the process of obtaining status extension).

(2) STUART ANDERSON, New USCIS Policy Will Carry Harsh Consequences for Applicants, FORBES, (Jul. 11, 2018), https://www.forbes.com/sites/stuartanderson/2018/07/11/new-uscis-policy-will-carry-harsh-consequences-for-applicants/.

(3) See Memorandum from USCIS on Updated Guidance on the Implementation of Notice to Appear Policy Memorandum (last updated Jul. 30, 2018).

Please contact us if you have any questions.

Jen Chen can be reached at 206.654.2250 or [email protected]. 
Marsha Mavunkel can be reached at 206.654.2253 or [email protected].
Amy Royalty can be reached at 206-654-2260 or [email protected].
Joel Paget can be reached at 206.654.2215 or [email protected].
Janet Cheetham can be reached at 206.654.2235 or [email protected].
Cody Nunn can be reached at 206.654.2280 or [email protected].