New Policies May Discourage Employers from Hiring Foreign Nationals

New Policies May Discourage Employers from Hiring Foreign Nationals

USCIS given more latitude to deny applications, refer workers for removal

Roy Maurer By Roy Maurer July 18, 2018
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September 27 Update: The Notice to Appear policy referenced below is set to go into effect Oct. 1 and will not be applied toward employment-based petitions, at least initially.

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

U.S. Citizenship and Immigration Services (USCIS) officers have been given expanded discretion to deny visa petitions and benefit requests, as well as broadened latitude to refer foreign nationals—including workers whose petitions or requests have been denied and lawful status has expired—for removal proceedings.

The agency issued a policy memo July 13 that makes it easier for adjudicators, beginning Sept. 11, to deny an application or petition without first having to issue either a request for evidence (RFE) or notice of intent to deny (NOID) when required evidence is not submitted or the evidence fails to establish eligibility. RFEs and NOIDs provide employers and foreign nationals an opportunity to correct information, provide more documentation and convince USCIS to approve the case before a denial is issued.

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.

"For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners," said USCIS Director L. Francis Cissna in a news statement. Cissna added that the agency hoped to discourage "skeletal applications used to game the system."

'Consequences Could Be Devastating'

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 (NTA)—a charging document that orders foreign nationals to appear in immigration court to begin the removal process—to anyone unlawfully present in the United States when an application, petition or benefit request is denied.

"USCIS will now needlessly sweep tens of thousands of individuals into removal proceedings, including those who have lived and worked lawfully in the U.S. and would otherwise seek appellate review or depart voluntarily if their application is denied," Tonello said.

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, based in Herndon, Va. "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."

[SHRM and CFGI eLearning: Hiring Foreign Nationals: Nonimmigrant Visas]

Drawn-Out Processing Times Could Result in More NTAs

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 in New York City, where he works on immigration and nationality law. 

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.

"Given the substantial processing times for many applications for change of status or extension of stay, this criterion could capture a great many who in good faith applied to change to a different status, or extend their stay, well before their initial period of authorized stay expired," Isaacson said.

H-1B professionals with a pending extension request are authorized to work for the sponsoring employer for up to 240 days while an extension petition is pending. However, due to significant processing backlogs, USCIS often takes longer to adjudicate H-1B extension petitions. During that time the previous visa petition may expire, leaving the worker dependent on the 240 days of work authorization until the H-1B extension petition is approved.

"While many cases get ultimately approved, USCIS is increasingly denying cases," Paruthipattu said. Denials might become more common due to the agency's recent decision to rescind guidance that required officers to give deference to prior visa recipients when adjudicating extension requests. 

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.  

Law enforcement essentially left these people alone. "The assumption was that the USCIS role ended, and if Immigration and Customs Enforcement [ICE] got wind of the matter, they would do something about it," Paruthipattu said. "Because ICE was using prosecutorial discretion to decide who to pursue for removals, these types of workers were not the focus."

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, Paruthipattu said. 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."

Tips for Employers

Sameer Khedekar, managing partner with the Pearl Law Group, an immigration law firm in San Francisco, 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.

Petitions for temporary visas may be filed up to six months in advance of the anticipated work start date. Extensions may be filed up to six months in advance of the expiration date of the current petition. Employers should consider sponsoring their workers for green cards at the earliest possible moment to maximize the chances the green card may be approved before the employee's underlying temporary work visa expires or is denied for extension.

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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