The later part of July brought two major immigration developments that affect U.S. businesses and foreign nationals. The United States Citizenship and Immigration Service (USCIS) has recently issued a memorandum pertaining to the government’s policy on the Requests for Evidence (RFEs) issuance for petitions and applications for various immigration benefits. While the practice of the recent years has been for the USCIS to issue RFEs (frequently, without thorough review of initially filed proceedings) to obtain additional data from the petitioners and applicants before making adjudication decisions, under the new policy, USCIS is expanding its ability to deny petitions and applications without an RFE. On its face, the new policy applies only to frivolous or “place holder” petitions that do not meet basic mandatory criteria for petitions adjudication. Unfortunately, with the USCIS’s processing backlogs and personnel training issues, there is a risk of overreach and abuse of discretion with regard to denials issuance without a chance for petitioners to provide additional evidence in non-frivolous cases.
In light of this development, the second policy memorandum pertaining to the broader use of Notices to Appear (NTAs) in immigration court is particularly alerting. The concern is related to the risk of the government’s use of NTAs to prosecute lawfully employed in the U.S. foreign workers whose bona fide applications for immigration benefits (e.g., extensions or amendments of business immigration proceedings) are denied rendering them unlawfully present in the U.S. The literal reading of the NTA memorandum allows issuance of an NTA for a removal hearing to a foreign professional or managerial worker whose routine nonimmigrant petition is denied erroneously or without due consideration. At present, the NTA memorandum enforcement is on hold per the USCIS’s initiative as the agency is trying to develop internal implementation guidance. The RFE memorandum discussed above is due for implementation as of September 11, 2018. Discuss these policy changes with your immigration counsel to ensure you and your employees are aware of their possible effects and risks.