“New Policies May Discourage Employers from Hiring Foreign Nationals”

7/19/2018
SHRM


“Immigration attorneys say that new government policies will have a chilling effect on employers hiring foreign talent.

“U.S. Citizenship and Immigration Services…officers have been given expanded discretion to deny visa petitions and benefit requests, as well as broadened latitude to refer foreign nationals…for removal proceedings.

“The agency issued a policy memo July 13 that makes it easier for adjudicators…to deny an application or petition without first having to issue either a request for evidence…or notice of intent to deny…when required evidence is not submitted or the evidence fails to establish eligibility. 

“…The memo reverses previous guidance that allowed USCIS officers to deny cases only when there was no possibility that the application could be corrected. The new policy is intended to discourage substantially incomplete filings.

“…Anastasia Tonello, managing partner at Laura Devine Attorneys in New York City and the president of the American Immigration Lawyers Association, pointed out that approval rates for cases after responding to RFEs are high, and about half of the RFEs she's seen ask for evidence that was in the application but that USCIS staff missed in their review.

“‘The consequences could be really devastating to employers,’ she said, especially in the wake of new agency guidelines issued earlier this month that may significantly increase the negative ramifications of a denial for both employers and the foreign talent they hire.

“The updated guidance instructs USCIS officers to serve a notice to appear…to anyone unlawfully present in the United States when an application, petition or benefit request is denied.

“...The NTA policy will have a chilling effect on employers looking to hire foreign talent, said Anantha Paruthipattu, founder and principal attorney at Paruthipattu Law Firm… ‘It's too early to say how it will play out, but if it plays out the way the memo reads, it will certainly discourage sponsorship of foreign national talent,’ he said. ‘Businesses do not like uncertainty or unpredictability. They spend a lot of money recruiting skilled foreign workers and spend more money sponsoring foreign nationals for their work visas. Once employees begin receiving NTAs, losing work authorization and being put into removal proceedings, decision-makers will rethink whether they want to go through the trouble of hiring foreign national talent at all.’

“…The new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the petition or benefit denial, noted David Isaacson, a partner at Cyrus D. Mehta & Partners… 

“…The revised guidelines could affect H-1B professionals, L-1 transferees and F-1 students who are denied extensions of their visas, and those who attempt to change temporary visa status or adjust status to a permanent visa if they became unlawfully present while their request was pending and are ultimately denied.

“…Previously, if an application or petition for immigration benefits was denied, the employee was in a kind of legal limbo but had time to work out an alternative way to maintain status, such as finding another employer-sponsor or moving to another status. Or he or she could voluntarily depart the country and seek approval for another visa that would enable a return to the U.S.  

“…Being served an NTA puts foreign national employees in a bind where they are legally obligated to remain in the U.S. without work authorization and await their court date, which could take years...If the person fails to appear in court he or she could be subjected to a bar on re-entry to the United States. But most workers with high-skill visas will move on anyway, Paruthipattu said. ‘They will return to their home country and seek other employment or try to move to another country like Canada or Australia, which is more welcoming of their talent.’

“…Sameer Khedekar, managing partner with the Pearl Law Group…advised foreign nationals and their employers to take all possible precautions to ensure that work visa petitions are filed and adjudicated to completion before the worker's existing status expires so that if the petition is denied, he or she will still be in status and can avoid an NTA.

“‘In situations where an employee is running out of time on their I-94 period of authorized stay, a decision will need to be made whether it is best for that individual to leave the country prior to I-94 expiration,’ Khedekar said.

“…When available, the petition should be filed with a request for premium processing, which requires USCIS to take action on the petition within 15 days of filing, Khedekar said.

“Further options include ‘forcing USCIS to promptly adjudicate cases by suggesting mandamus filings in district court for cases pending beyond normal processing times,’ or ‘recommending that district court challenges be filed on any denied cases … [T]his could grant interim benefits to an employee while a neutral judge determines if the USCIS denial was proper or not,’ Khedekar said.”

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