United States: Analysis: USCIS Issues Two Policy Memoranda that Could be Significantly Detrimental to Business Immigration

On June 28, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum in PM-602-0050.1 regarding when the agency will issue a Notice to Appear (NTA) before an immigration judge for removal proceedings (colloquially known as deportation). Later, on July 13, 2018, USCIS issued another Policy Memorandum in PM-602-0163 providing updated guidance on the agency's discretion to deny an application or petition without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Both memoranda went largely unremarked in the national media when released but could have harsh consequences for individuals seeking immigration benefits, including in the business immigration context.

NTA Policy Memorandum

The June 28 Policy Memorandum lists a number of grounds in which USCIS can issue an NTA absent high-level approval to do otherwise.  This Policy Memorandum is said to be intended to implement the Trump Administration's enforcement priorities as set out in the January 2017 Executive Order (EO) "Enhancing Public Safety in the Interior of the United States."

By way of background, an NTA is a document which, when issued to a foreign national, effectively places them into removal proceedings. Under the Obama administration, most NTAs were issued to foreign nationals with serious criminal records and/or numerous previous violations of immigration law. The new policy breaks with (and supersedes) prior practice, introducing a number of circumstances in which NTAs may now be issued by USCIS.

Perhaps the most significant ground for issuing an NTA under the new policy is one buried at the bottom of page 7 of the Policy Memorandum, after discussion of various scenarios relating to fraud or criminal cases. The Policy Memorandum states there that "USCIS will issue an NTA 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 clause could encompass a wide variety of scenarios, most notably instances where an H-1B portability request for a change of employer/extension of stay is denied. Given the great expansion of Requests for Evidence and denials of H-1B petitions under the Trump administration, countless corporate sponsors and foreign nationals could be forced to deal with the harsh reality of removal proceedings. (It is worth noting that between 2016 and 2017, the H-1B denial rate increased over 100% to 17.6% of all petitions filed and it is commonly assumed that the denial rate has further increased in 2018.) In addition, slight delays in filing for extensions of stay or administrative errors whereby a company or foreign national has a petition/application rejected could have draconian removal proceeding consequences as well.

Immigration courts are already overtaxed and this new policy will only place further strain on the system to accommodate foreign nationals who often have options for correcting status in the face of a denied petition or application. Furthermore, this policy change actually pushes the United States further from its goal of prioritizing removal proceedings for criminal foreign nationals. In addition, such an effort further blurs the line between the role of Immigration and Customs Enforcement (ICE) and USCIS, the latter of which was established to be a benefits processing entity.

RFE and NOID Policy

The July 13 Policy Memorandum will rescind in its entirety a prior June 3, 2013 Policy Memorandum on the same subject titled "Requests for Evidence and Notices of Intent to Deny." The 2013 Policy Memorandum instructed USCIS to issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) where the evidence submitted does not immediately establish eligibility for the immigration benefit sought. The 2013 policy additionally instructed adjudicators to issue RFEs unless there was "no possibility" that the submission of additional evidence would cure the evidentiary deficiency. The USCIS stated that the result of the 2013 policy "was that only statutory denials (such as a denial where a nonexistent benefit is requested) would be issued without an RFE or NOID."

The July 13 Policy Memorandum, which will go into effect on September 11, 2018, will rescind the 'no possibility' standard, thereby allowing USCIS to issue a denial without RFE or NOID if there is not a legal basis for the requested benefit, of if any required initial evidence is not included with the benefit request.

The Policy Memorandum also includes language giving USCIS officers the ability to issue multiple RFEs, and to investigate/corroborate assertions made in a filing by consulting USCIS or other government records, or by searching the internet.

While the USCIS's intent in this new policy appears to attempt to curb individuals filing frivolous immigration benefit petitions and applications to protect status, it is feasible that aggressive USCIS officers could use this new-found ability to deny meritorious business immigration filings or filings with minor deficiencies. Even more troubling is that USCIS officers are human, after all, and make mistakes when reviewing documentation. As businesses crave predictability in the immigration process, this policy only further frustrates corporate entities looking to expand operations and hiring in the United States.

Green and Spiegel is closely watching the above-described developments and is available to address the overarching effects these policies will have on corporate global mobility strategies as well as acute cases where individual foreign nationals may now face removal proceedings or a denial in lieu of an RFE or NOID.

Please contact us directly for more information.

Sign up for our e-Alerts

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.