United States: USCIS Developments On The Discretion Afforded Adjudicators, And H-1B Premium Processing

In recent weeks, several notable policy changes have taken place concerning the adjudication of immigration petitions by the United States Citizenship and Immigration Services (USCIS).

Suspension of H-1B Petition Premium Processing

On August 28, 2018, USCIS announced1 that it was extending and expanding the previously announced temporary suspension of premium processing for cap-subject2 H-1B petitions.3 As of September 11, 2018, USCIS is no longer accepting premium processing requests for any H-1B petitions filed at the Vermont and California Service Centers (with minimal exceptions, detailed below). Previously, the suspension extended only to H-1B cap-subject petitions through September 10, 2018.

The suspension does not apply to:

  1. cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity, or organization; or
  2. those petitions filed exclusively at the Nebraska Service Center by an employer requesting a "[c]ontinuation of previously approved employment without change with the same employer."

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129. Premium processing is expected to be reinstated for all H-1B petitions on February 19, 2019. Employers should particularly recognize that the suspension on premium processing will affect H-1B cap cases, but will also prolong cases filed as a Change of Employer, which are not normally subject to the cap.

Updated Guidance on Adjudicatory Discretion

Separately, USCIS also released updated guidance to USCIS adjudicators regarding their discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). This updated policy memorandum served to rescind a previous USCIS policy memorandum from 2013 that limited denials without RFEs or NOIDs to statutory denials, by providing that RFEs should be issued unless there was "no possibility" of approval. USCIS has indicated that "[t]his 'no possibility' policy limited the application of an adjudicator's discretion."4

USCIS Director L. Francis Cissna explained that, "[t]hrough this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits." According to Director Cissna, this change "will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency's ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws."5 

As of September 11, 2018, USCIS adjudicators will have full discretion to deny any application, petition, or request (except for Deferred Action for Childhood Arrivals (DACA) adjudications) without first issuing an RFE or a NOID "when required initial evidence was not submitted or the evidence of record fails to establish eligibility." According to USCIS, "[t]his policy is intended to discourage frivolous or substantially incomplete filings used as 'placeholder' filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence." 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. In tandem with this change, USCIS has published optional checklists outlining evidence requirements under different visa classifications.6

Employers should take note of these changes when pursuing work authorization requests for foreign workers. In light of a previously issued (though now temporarily postponed, pending further operational guidance7) policy memorandum regarding issuing Notices to Appear (NTA) to foreign nationals who are removable when there is evidence of fraud, criminal activity, or when the foreign national is denied an immigration benefit and is unlawfully present in the United States,8 these new policies have put a chilling effect on prior advice many immigration practitioners have provided their clients. As a result, affected employers should assess whether they need to re-evaluate practical and substantive options in their workforce management.

Footnotes

1 U.S. Citizenship and Immigration Services, USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions to Reduce Delays (Aug. 28, 2018).

2 Federal law sets an annual fiscal-year limit of 65,000 on the number of new H-1B visas available. This number is commonly referred to as the H-1B Cap. When the available H-1B numbers have been used for the federal fiscal year, which begins October 1 and ends September 30, the cap is considered reached, and no new cap-subject petitions can be approved until the filing period for the next fiscal year's numbers opens. Only certain petitions are eligible for cap exemption.

3 Sheerin Mehdian and Michelle White,  USCIS Suspends Premium Processing for Fiscal Year 2019 H-1B Cap Petitions, Littler ASAP (Mar. 28, 2018).

4 U.S. Citizenship and Immigration Services, USCIS Updates Policy Guidance for Certain Requests for Evidence and Notices of Intent to Deny (July 13, 2018).

5 Id.

6   U.S. Citizenship and Immigration Services, Checklist of Required Initial Evidence for Form I-129 (Sept. 11, 2018).

7 U.S. Citizenship and Immigration Services, Updated Guidance on the Implementation of Notice to Appear Policy Memorandum (July 30, 2018).

8 Jorge R. Lopez and Ashley A. Diaz, Visa Denial Results in Imminent Deportation for Foreign Nationals, Littler ASAP (updated July 31, 2018).

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