“New USCIS Policy Will Carry Harsh Consequences For Applicants”


“…The most recent USCIS effort…is a June 28, 2018, policy memorandum on updated guidance on Notices to Appear (NTAs). As explained below, few Americans likely understand the dire consequences a foreign-born professional placed in deportation proceedings will face under the new policy – even if he or she did nothing more than have an application denied after waiting a long time for a decision.

“To better understand the new policy and its implications…[the author] interviewed Jennifer Minear, a director in the immigration practice group at McCandlish Holton. 

“…Stuart Anderson: How bad do you think the consequences could be from the USCIS memo on Notices to Appear?

“Jennifer Minear: The potential harsh consequences as a result of this memo are staggering.

“…Anderson: How is the new policy different?

“Minear: In the past, USCIS has generally referred matters of potentially removable foreign nationals to ICE to determine whether removal proceedings should actually be initiated by issuing a Notice to Appear. However, under its new policy memorandum…USCIS has greatly expanded its mandate for issuing NTAs without first consulting ICE. Now, USCIS will issue a Notice to Appear on its own initiative and thereby place individuals in removal proceedings upon denial of an application or petition for immigration benefits if the person is deemed removable at the time of the denial.

“Anderson: What are the consequences of an individual receiving a Notice to Appear vs. in the past when a person may have decided to depart the United States voluntarily?

“Minear: Previously, if an application or petition for immigration benefits were to be denied, the foreign national might be able to depart the U.S. relatively quickly and either remain abroad or obtain approval for another visa that would enable him or her to return to the U.S. However, once an individual is issued a Notice to Appear, he or she is legally obligated to remain in the U.S. and appear before an immigration judge.

“Anderson: What happens if an individual fails to appear?

“Minear: If the person fails to appear in immigration court in compliance with the Notice to Appear, then a deportation order will be issued against the person. The failure to appear for removal proceedings carries a 5-year bar on re-entry to the United States.

“…On the other hand, if the individual does remain in the U.S. to contest the removal proceedings – a process that could take years…he or she is considered ‘unlawfully present’ during all of that time. If the individual prevails in the removal proceedings, his or her status will be restored and the unlawful presence will be wiped away. But if the individual loses, he or she will likely be subject to a 10-year bar on re-entering the U.S….

“…Anderson: Can this happen to an H-1B professional whose employer files for an extension?

“Minear: Yes. Many H-1B professionals whose petitions for initial or extended H-1B status are ultimately denied are likely to be placed into deportation proceedings under this policy.

“Anderson: What will happen to the careers of individuals placed into deportation proceedings? Are people even allowed to work and support themselves while waiting for their immigration court appearance?

“Minear: The consequences could be extreme because almost all people in removal proceedings are unable to obtain legal authorization to work. 

“…For most people, being placed in proceedings is a legal limbo where you are not lawfully present, yet not able to leave without triggering a bar on re-entry, and not able to work legally.

“Anderson: Can you walk through how the new USCIS policy memo could affect an H-1B visa holder?

“Minear: For example, an H-1B professional who has been legally employed in the U.S. in H-1B status in the past is permitted by federal regulation to continue living in the U.S. and working for the sponsoring employer for up to 240 days while an extension petition is pending – as long as the extension petition is filed prior to the expiration of the prior H-1B petition.

“If the petition is ultimately denied, then such a person would be deemed unlawfully present as of the date of the denial and, under this new policy, an NTA would be issued. This is a very real scenario. The number of H-1B denials is increasing. 

“…Anderson: How could an international student be affected by the USCIS policy memo on Notices to Appear?

“Minear: A number of international students who have entered the country to attend U.S. colleges and universities may also be placed in deportation proceedings under this new policy. This is because USCIS has also recently published another new policy that will take effect on August 9, 2018. That policy redefines ‘unlawful presence’ to include any violation of student status. 

“…For example, if USCIS determines in the course of adjudicating an application for an immigration benefit that a student’s employment was unauthorized, or that the student’s school failed to update or maintain the student’s records, then USCIS could deny the application for immigration benefits, make a finding that the student is unlawfully present, and issue a Notice to Appear to the student. 

“…Anderson: What about managers and executives?

“Minear: Multinational managers or executives who have been transferred to the U.S. to work for U.S. offices of foreign companies may also become deportable under this new policy. When such executives apply for a green card…and the processing times can take many months. If the manager or executive’s underlying temporary work visa…expires while the immigrant petition and green card application are pending, and then USCIS denies the immigrant petition, the manager or executive and his family members will be issued NTAs and placed into removal proceedings – even if the denial of the petition was a clear error and there is a valid basis for appeal.

“Anderson: What are the likely resource impacts of this new policy?

“Minear: This will be an overwhelming administrative burden for an agency that is already struggling with ever increasing processing times and backlogs across all application types. USCIS can also expect increased litigation over denied applications and petitions now that the consequences of those denials are even more severe due to the virtual certainty of being placed in deportation proceedings.

“…Anderson: What advice do you have for individuals?

“Minear: Foreign nationals need to take all possible precautions to ensure that their work visa petitions are filed and adjudicated to completion before the foreign national’s existing status expires, so that if the petition is denied, the foreign national will still be in another status and can avoid a Notice to Appear.

“…Employers should plan to file petitions at the earliest possible moment. 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.

“Anderson: What about advice for employers?

“Minear: Similarly, employers should consider sponsoring their workers for green cards at the earliest possible moment in order to maximize the chances the green card may be approved before the employee’s underlying temporary work visa expires or is denied for extension.

“Where premium processing is not an option to ensure expeditious decision-making from USCIS, employers and foreign nationals may need to consider filing mandamus actions against USCIS to compel the adjudication of the application or petition for immigration benefit before the foreign national’s underlying immigration status expires.

“Anderson: What does this USCIS memo on Notices to Appear and its consequences say about the state of immigration policy in America today?

“Minear:…Other recently introduced policies, procedures and adjudication trends within USCIS have injected so much uncertainty and unpredictability into the process of seeking U.S. work authorization it has become almost impossible to advise clients as to what the outcome might be of a particular petition or application for an immigration benefit.

“I fear that this policy, combined with others previously announced, will discourage the best and brightest minds from around the world from wanting to come to our country and contribute to our economy and culture.”

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