New immigration policy potentially increases chances of employment-based beneficiaries being placed in removal proceedings

July 17, 2018

Immigration Law Alert

Author(s): Jason Gerrol

New policy guidance mandates U.S. Citizenship and Immigration Services to place in removal proceedings any foreign national “not lawfully present,” among other immigration violations, thereby increasing the chance a foreign national worker may face removal proceedings following an adverse decision.

For years, U.S. immigration authorities have issued Notices to Appear (NTA) to foreign nationals deemed “removable” from the U.S. due to a lack of lawful immigration status, a criminal conviction or any number of other immigration violations. As the name suggests, individuals who receive NTAs must appear before an immigration judge, who will determine whether they should be removed from the U.S., or whether they are entitled to some type of relief allowing them to remain in the U.S.

While U.S. Citizenship and Immigration Services (USCIS) has always possessed the authority to issue NTAs, the agency has historically focused on adjudicating immigration-related benefits, and has left immigration enforcement and the issuance of NTAs to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). However, new USCIS guidance dated June 28, 2018 (and published July 5, 2018), may greatly expand the role of USCIS in issuing NTAs, and therefore expand the circumstances in which foreign nationals receive NTAs.

While it remains to be seen the extent to which USCIS will exercise their expanded NTA authority, the new policy is significant in that it may greatly expand the number of NTAs issued in employment-based immigration cases. Specifically, the policy mandates USCIS to issue an NTA where the denial of a petition (e.g., an H-1B extension), renders the foreign national unlawfully present in the U.S. U.S. employers, and their foreign national employees, should therefore plan accordingly to avoid being in a position where the denial of a non-immigrant extension petition, for example, would render the foreign national employee unlawfully present in the U.S.

On what conditions may USCIS issue an NTA?

USCIS may issue NTAs in a variety of cases, including those involving fraud, misrepresentation, abuse of public benefits programs, evidence of criminal activity or national security concerns, among other removable offenses. Of specific relevance to employers, the new policy states USCIS will issue an NTA where a denial of a petition or application leaves the foreign national not lawfully present in the U.S.

For example, when an H-1B visa holder enters the U.S., he/she will receive a Form I-94 with an expiration date representing the period of time he/she may remain in the U.S. The individual must never stay beyond their Form I-94 expiration without first filing for an extension or change of status with USCIS. As a general rule, the individual will remain in lawful status while the extension/change of status is pending with USCIS, even if the underlying Form I-94 has since expired. However, should USCIS ultimately deny the extension/change of status after the underlying Form I-94 has expired, the effect of the denial will be to render the individual unlawfully present in the U.S. (a removable offense). Similarly, where a foreign national is lawfully present in the U.S. pursuant to a pending Adjustment of Status (i.e., “green card”) application, and does not have an underlying non-immigrant status, the denial of the Adjustment of Status would render the individual unlawfully present in the U.S. Historically, USCIS would not have issued NTAs in these scenarios, but under the new policy, these are the types of fact patterns that could trigger an NTA from USCIS.

Further, on July 13, 2018, USCIS issued a separate policy memorandum announcing greater discretion on the part of USCIS officers to deny an application or petition without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), meaning petitioners and applicants may not have any warning of a potential issue prior to receiving a USCIS denial.

Does USCIS have to issue an NTA?

No, USCIS does not have to issue an NTA. The concept of “prosecutorial discretion” has long been a part of our immigration system, allowing immigration officers the discretion to decide whether to issue an NTA, refer the case to another agency (e.g., ICE) or perhaps do nothing. The extent to which USCIS will exercise this discretion, especially in cases like that of the otherwise lawful H-1B worker presented above, remains to be seen.

How can an employer minimize the chance of receiving an NTA?

An employer sponsoring foreign national workers should consult with experienced immigration counsel regarding the impact of the new USCIS NTA policy. As part of that discussion, strategies to avoid rendering employees “removable” because of unlawful presence should be considered, including:

  • Filing non-immigrant visa extensions at the earliest opportunity. As a general rule, USCIS will accept a non-immigrant visa extension petition within 180 days of the Form I-94 expiration. In most cases, if USCIS denies the extension petition while the underlying Form I-94 remains valid, the employee will remain in lawful status until the Form I-94 expires.
  • Where USCIS is unfortunately taking longer than 180 days to adjudicate non-immigrant extension petitions, employers may want to consider opting for USCIS Premium Processing service, where an additional filing fee of $1,225 will require USCIS to adjudicate the petition within 15 calendar days of receipt of the fee.
  • Where an employee has both a non-immigrant status (e.g., H-1B) and separate lawful immigration status pursuant to a pending Adjustment of Status (i.e., “green card”) application, ensure the employee maintains both statuses. In the event one is denied, the employee will still be lawfully present by virtue of the other. Please note, however, this option will generally only apply where the employee’s non-immigrant status is recognized as “dual intent” (e.g., H or L status).
  • Carefully reviewing cases where other issues are present, such as periods of unauthorized employment, immigration status violations, etc.

If the employee him/herself has a separate immigration violation unrelated to employment, such as a misrepresentation or criminal violation, he/she should be sure to discuss the impact of that violation with independent immigration counsel.

What if an employee receives an NTA?

If an employee receives an NTA, they should not depart the U.S. without first discussing options with experienced immigration counsel.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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