U.S. Citizenship & Immigration Services (USCIS) recently issued two new Policy Memoranda that change the way the agency will approach the issuance of Requests for Further Evidence (RFE), Notice of Intent to Deny (NOID), and Notices to Appear (NTA) initiating removal (“deportation”) proceedings. These changes will have an impact on employment-based immigration cases.

New Policy on Initiative Removal (Deportation) Proceedings

The first of these new Policy Memoranda was issued on June 28, 2018, and it updates the guidance to CIS adjudicators regarding the issuance of Notices to Appear (NTA). Citing Executive Order 13768, which specified that the government will no longer exempt classes or categories of removable aliens from potential enforcement, this new Policy Memoranda expands the agency’s priority list for initiating removal proceedings to include those who have been denied an  immigrant benefit after their underlying nonimmigrant status has expired.

An example of the application of this new priority for initiating removal proceedings is the case of an H-1B employee for whom an H-1B extension petition has been filed, but which remains pending after the previous period of H-1B approval has expired. So long as the petition is pending, the H-1B worker is in a “period of authorized stay,” even if the prior period of H-1B status has expired. However, if the CIS denies the H-1B extension petition, which is possible given the changed adjudication standards and policies under the Trump Administration, the employee will be considered present in the U.S. without authorization as soon as the petition is denied. According to the new CIS Policy Memorandum, this individual is now a priority for issuance of a Notice to Appear (NTA), which begins removal proceedings once the government files it with the immigration court. Under previous Administrations, those denied benefits would typically be allowed to wrap up their affairs and depart the U.S. or acquire a different immigration status. Under the new policy, they may be ushered into costly and time-consuming removal proceedings.

New Policy Regarding Requests for Evidence (RFE) and Notices of Intent to Deny (NOID)

The second of these new Policy Memoranda was issued on July 13, 2018, and it updates the guidance to CIS adjudicators on when it is appropriate to issue Requests for Further Evidence (RFE) and Notices of Intent to Deny (NOID) in order to give an petitioner or applicant an opportunity to overcome a perceived deficiency in the petition or application before issuing a denial. According to the new Policy Memorandum, an RFE or NOID is not necessary, and petitions and applications may be denied in a broader range of circumstances without giving the petitioner or applicant the opportunity to respond by supplying the missing information or documentation.

 An example of the application of this new policy would be the applicant for Adjustment of Status to U.S. Lawful Permanent Resident who omits a birth certificate when filing the application originally because of difficulty obtaining the document from the home country issuing authority. Because the CIS considers the birth certificate initial, required evidence, the CIS is permitted by the new Policy Memorandum to simply deny the application without issuing an RFE. The CIS filing fee for the Application to Adjust Status is $1,225, and it is not returned or refunded in the event of a denial. While the Policy Memorandum indicates the new policy is intended to discourage “substantially incomplete filings used as ‘placeholder’ filings” and “is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements,” the Memorandum makes it clear that adjudicators have “full discretion to deny applications, petitions, and requests without first issuing a RFE or a NOID, when appropriate.”

Potential Impact of Adjudicator’s Broad Discretion

While the CIS may intend the Memoranda to be applied in good faith with reasonable exercise of discretion to avoid an unfair result, adjudicators  now have virtually unfettered discretion to deny petitioners and applications without giving petitioners and applicants an opportunity to cure the deficiencies the adjudicator has perceived. This new approach to adjudications could lead to more denials. Even if the denial can be shown to be absolutely unwarranted as well as inadvisable, the petitioner or applicant must expend more time and resources, including filing fees and legal fees, to set the record straight and get the case back on track after a wrongful or hasty denial.

The time and cost of refilling or filing a Motion to Reopen are significant burdens, but even  worse is the possibility that a hasty or wrongful denial could lead to the initiation of removal proceedings by issuance of a Notice to Appear under the revised guidance described in the earlier Policy Memorandum of June 28, 2018.

Steps to Reduce Potential Adverse Impacts

In order to avoid the substantial impact of potentially falling prey to one of these new CIS policies, petitioners and applicants are encouraged to initiate the process for extending nonimmigrant status early. Additionally, nonimmigrants seeking to apply for permanent residency should remember to maintain their underlying nonimmigrant status as long as possible while pursuing the permanent residency process. Employers are encouraged to work with immigration counsel to determine the optimum time to begin the permanent residency process for each employee to better the chances that the employee will be able to fully maintain lawful nonimmigrant status as long as possible throughout the permanent residency process up until the day of final approval for permanent residency.

For more information on how these new Policy Memoranda may impact a particular case, or to initiate the permanent residency process for current or new employees, contact your Foster immigration attorney.