U.S. Citizenship and Immigration Services (USCIS) has adopted two new policies that extend the capacities of agency officials. One policy allows USCIS to refer foreign workers for removal proceedings in immigration court. As of July 5, 2018, USCIS can issue Notices To Appear (NTAs) for removal proceedings in instances of suspected crime, fraud, or unlawful presence in the U.S. after the rejection of an application or petition.
The second policy gives USCIS adjudicators full discretion to deny an application, petition, or request that is found to be missing initial or eligible evidence without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). This policy applies to all applications, petitions, and requests filed after September 11, 2018, except for Deferred Action for Childhood Arrivals (DACA) adjudications.
Impact on Businesses
While USCIS now has the authority to issue NTAs and deny submissions without RFEs or NOIDs, this does not necessarily mean that they will in all cases. NTAs will most likely be issued in cases of strongly suspected fraud or crime, and submissions will most likely be rejected in cases with weak evidence for eligibility. Employers can also appeal USCIS decisions that they feel were made mistakenly.
However, employers should be vigilant and timely in compliance efforts for their visa sponsorship programs to minimize the possibility of worker removal. Employees denied for a visa extension are most at risk of entering removal proceedings and becoming unable to apply for further sponsorship opportunities. For this reason, we recommend filing extensions as far in advance as possible. Special attention should also be paid on cases where an employee is transferring from another company to avoid having the employee caught in between valid employer sponsorship.
This post does not constitute legal advice or an attorney-client relationship. Please contact your Graham Adair attorney for any concerns regarding these developments. For more frequent updates, follow us on Twitter (@GrahamAdairLaw).