There were no lazy days of summer to be had in 2018—at least not when it came to the introduction of new immigration policies by the Trump administration. The momentum with which it announced and implemented new policies over the course of July and August was dizzying, not only because there were so many changes but also because those changes were substantial. This article provides an overview of this summer’s most notable immigration policy changes and their likely impact on employers.
The NTA Policy – July 5, 2018
U.S. Citizenship and Immigration Services (USCIS) published a policy instructing officers to issue a notice to appear (NTA) to any individual who, after an application or petition is denied, is deemed not lawfully present in the United States. An NTA marks the commencement of removal (deportation) proceedings against a foreign national and mandates that the foreign national appear before an immigration judge. On July 30, 2018, USCIS announced that it was delaying the implementation of the new NTA policy pending the issuance of operational guidance. No timeline was provided.
USCIS generally gives a foreign national who is denied an immigration benefit an opportunity to leave the United States on his or her own before placing him or her in formal removal proceedings. The July 5, 2018, policy announcement reverses this long-standing practice by immediately initiating removal proceedings.
What’s the impact?
The new policy, once implemented, stands to put foreign nationals in a no-win situation. If they stay in the United States to attend their immigration hearings, as they are required to do, they risk accruing unlawful presence while they wait. Because many immigration courts around the country are already scheduling hearings beyond 2019, foreign nationals who wait are at risk of triggering either the 3- or 10-year bars on reentry for overstaying a visa. (It should also be noted that those foreign nationals will be unable to work while they await their hearings due to their immigration status.) If they decide to leave the United States prior to their hearings, they will be subject to a five-year bar on reentry for failing to appear before an immigration judge.
The RFE/NOID Policy – July 13, 2018
USCIS announced that it was giving adjudicators the authority to deny petitions and applications found to be incomplete or lacking sufficient evidence without first issuing a request for evidence (RFE) or notice of intent to deny (NOID).
The policy, which went into effect on September 11, 2018, is a significant departure from the prior policy, which encouraged the issuance of RFEs when additional information was needed unless there was “no possibility” of proving eligibility for the benefit sought.
What’s the impact?
It is too soon to fully understand how this policy will be implemented by USCIS. On a recent call with the USCIS ombudsman, USCIS representatives emphasized that the new policy is not intended to punish those who make innocent mistakes but rather to discourage the use of placeholder filings (applications intentionally filed despite being incomplete). Adjudicators still have the discretion to issue an RFE but will do so only if they determine that the filer made a good faith effort to comply with the requirements. It is not clear if the new policy will be consistently enforced. Are decisions left entirely to the discretion of the adjudicator or are there specific factors that the adjudicators will weigh in deciding who qualifies for an RFE? There is also serious concern that this policy will be used in tandem with the NTA policy, thus increasing the number of foreign nationals who end up in deportation proceedings.
The Unlawful Presence Policy – August 9, 2018
USCIS implemented its new unlawful presence policy that made a violation of status a trigger for the accrual of unlawful presence for international students (F-1), exchange visitors (J-1), vocational students (M-1), and their dependents. Under the new policy, an F, J or M visa holder who violates his or her status begins to accrue unlawful presence on the earliest of either August 9, 2018, or the day after he or she violates his or her status, whether he or she is aware of the violation or not. USCIS also issued an updated policy memorandum adding an exception for F, J, and M visa holders whose visa reinstatement applications are ultimately approved.
Under the prior policy, violations of status and unlawful presence were viewed as distinct issues. A student could violate the terms of his or her status without accruing unlawful presence. Only a formal finding of a violation triggered the accrual of unlawful status, which is no longer the case. Now, a student who inadvertently violates his or her status may not realize that he or she has been unwittingly accruing unlawful presence until applying for an immigration benefit with USCIS.
What’s the impact?
Unlawful presence is a serious concern because it can prevent reentry into the United States. Individuals who are unlawfully present in the United States between 180 days and a year are subject to a three-year bar on reentry. Those unlawfully present for more than a year are subject to a 10-year bar on reentry. Individuals subject to the 3- or 10-year bars are not eligible to apply for visas or adjustments of status unless they are granted a waiver of inadmissibility. Waivers are very difficult to obtain.
There is also concern that this policy will be used in conjunction with the NTA policy once that policy goes into effect and will result in more students and exchange visitors being placed in removal proceedings.
The STEM OPT Third-Party Sites Policy – August 17, 2018
USCIS published revised guidance to clarify that it will allow F-1 students working under the optional practical training (OPT) extension for individuals in science, technology, engineering and math (STEM) to be placed at third-party worksites as long as the student’s employer can prove that it has a bona fide employment relationship with the student and meets all other training obligations.
In January 2018, USCIS revised its website to prohibit STEM OPT students from working anywhere other than their employer’s place of business. The change was made without comment or notice, and there was confusion about how it would be applied and whether it would apply retroactively.
What’s the impact?
Employers that can prove that they maintain a bona fide employment relationship with their STEM OPT student employees will be allowed to place those students at off-site locations. The Department of Homeland Security (DHS) will review training plans on a case-by-case basis to ensure that the employer signing the training plan is the employer that actually provides the practical training.
The H-1B Premium Processing Freeze – August 29, 2018
USCIS announced the extension of its premium processing freeze for all H-1B cap cases through February 19, 2019, and expanded the suspension to include the majority of H-1B petition types.
USCIS implemented the original suspension on April 2, 2018, in an effort to clear out its long-standing backlog of H-1B cases. The original suspension was slated to last until September 10, 2018, and only affected H-1B cap cases.
What’s the impact?
The suspension of premium processing affects all H-1B cap cases and H-1B petitions going to the Vermont and California Service Centers, including all changes of employer, changes of status, and amendments. However, premium process is still available for H-1B extensions in certain circumstances, as well as I-140s and other nonimmigrant visas, including L-1 and TN visas.
The Premium Processing Fee Increase – August 31, 2018
DHS announced that it will increase premium processing fees by nearly 15 percent, from $1,225 to $1,410, beginning October 1, 2018.
What to Expect in the Fall
It remains to be seen if USCIS plans to maintain this blistering pace as we head into the fall. Many expect USCIS to announce the rescission of the H-4 employment authorization document program, which provides work authorization to certain H-1B spouses, in the coming months. The much publicized rescission was expected this summer, but it never materialized. Recent court documents, however, confirm that it is still an agency priority. Changes to the public charge law may also come into play as the Trump administration is said to be considering revisions to regulations governing the use of public benefits by immigrants, such as food stamps and Medicaid.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these policies and will post updates on the Immigration blog as additional information becomes available.