New USCIS Policy Memos Create Additional Burdens for Foreign Workers and Employers

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Earlier this month, U.S. Citizenship and Immigration Services (“USCIS”) announced two major policy changes that affect employers seeking to sponsor foreign workers for nonimmigrant visas. The first policy memo, dated June 28, 2018, relates to the issuance of a Notice to Appear (“NTA”), the official charging document to begin a deportation case against a foreign national. The second memo, dated July 13, 2018, revises the guidance adjudicators must consider when issuing a Request for Evidence (“RFE”) or Notice of Intent to Deny (“NOID”). Taken in concert, these memos will drastically alter if, when, and how employers will sponsor foreign employees, as well as complicate family immigration and student visa cases.

The NTA Memo

The June 28, 2018 memo (“NTA Memo”), currently in effect, is a major shift in determining which agencies of the Department of Homeland Security (“DHS”) are responsible for enforcement of immigration laws. Historically, USCIS has been responsible for the adjudication of immigration benefits, while Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) have been responsible for determining who may be removable from the United States. The NTA Memo requires USCIS to become an additional enforcement arm of DHS by mandating that USCIS officers issue NTAs if an application is denied and the foreign national is otherwise removable, rather than allowing the foreign national to leave the United States on their own accord if their application is denied. The issuance of an NTA is devastating to the foreign national, as it is the first step towards a formal adjudication of deportation/removal from the United States. Current immigration court processing times can take many years, with an average case taking 670 days before adjudication. During this time, the foreign national cannot work, does not have a lawful immigration status, and runs the risk of a potential 10-year bar to being allowed back into the United States if they are unsuccessful in their immigration court case. Even if the foreign national or employer appeals a USCIS denial, the immigration court case will still proceed during that time.

The RFE Memo

The July 13, 2018 memo (“RFE Memo”) is also a major policy shift affecting immigration applications. The RFE Memo is set to become effective on September 11, 2018, and rescinds a USCIS memo dated June 3, 2013 regarding RFEs and NOIDs. The new memo indicates that if “all required initial evidence is not submitted with a benefit request,” USCIS may deny the benefit without first requesting additional evidence or otherwise allowing an applicant to explain why evidence is or is not available. In a climate where RFEs related to H-1B applications have increased by 45%, outright denials in these cases will be especially draconian. Taken in concert with the NTA memo, the practical results are:

  • Increased processing times for all USCIS applications, as USCIS has to undertake additional obligations to issue NTAs;
  • A potential increase in USCIS filing fees to accommodate the need for additional USCIS staff;
  • Increased backlog of immigration court case processing times;
  • Requiring employers and foreign nationals to request premium processing in all applicable cases, or filing at the earliest opportunity (180 days in advance of status expiration);
  • Additional expenses to file appeals of erroneous USCIS denials;
  • A decrease in applications to USCIS as employers and foreign nationals consider their options; and
  • An overall reduction in the foreign national workforce to fulfill highly skilled jobs.

Based on this new guidance, employers and foreign national workers must reevaluate timelines for filing extensions of status, the pros and cons of applying for an immigration benefit, and the overall costs that must be budgeted for a matter.

If you have any questions regarding the USCIS policy memos or immigration law updates, please contact Leech Tishman’s Immigration Practice Group. 

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