On July 5, 2018, the U.S. Citizenship and Immigration Services (“USCIS”) published updated guidelines for referring cases for removal (deportation) and issuing a Notice to Appear (“NTA”). The NTA is the charging document that places foreign nationals in removal proceedings before the Immigration Court. The new guidance outlines how the updated USCIS’ NTA and referral policies will better support the Administration’s enforcement priorities under the Executive Order “Enhancing Public Safety in the Interior of the United States”, and the Secretary of Homeland Security’s Implementation Memorandum “Enforcement of the Immigration Laws to Serve the National Interest.” While the updated policy guidance has yet to be implemented as USCIS is working on the agency’s operational guidance, the revised NTA policy has the potential to significantly impact employers and their employees who are applying change of status, change of employer, extension of status and adjustment to lawful permanent resident status.
What are the updates to the removal policy?
The updated 2018 NTA guidance will expand the class of foreign nationals who will be issued an NTA to include:
Foreign nationals who, upon the denial of a petition or application, are no longer lawfully present in the United States.
Foreign nationals whose criminal offense meets the EPS definition, regardless of the existence of a conviction, if the application or petition is denied and the alien is removable
Foreign national who under investigation for, arrested for (without disposition), or has convicted of a non-EPS crime, even if the application or petition is denied on another basis
Foreign nationals who are found to have abused Federal or State public benefit programs
Foreign nationals who are found to have committed fraud or misrepresentation even if the petition or application is denied on other grounds.
Foreign nationals whose N-400 application for U.S. citizenship has been denied on good moral character grounds based on the underlying criminal offense
How will the updated removal policy affect employers and employees?
Under the updated removal policy, foreign nationals who are applying for a change of status, extension of status, and adjustment of status could be placed in removal proceedings if their petition or application is denied, and the previously granted nonimmigrant status has expired or was otherwise terminated. For example, in an H-1B change of employer petition scenario where the foreign national begins working for the new employer on the petition receipt (“H-1B portability”), the foreign national may be placed in removal proceedings if the petition is later denied, and the foreign national’s previously granted period of stay expired before the petition was denied.
How does the removal policy work in conjunction with other USCIS policy changes?
Although the updated removal guidance states that it will not apply to the use of discretion in adjudicating petitions or applications, it does appear to work hand-in-hand with USCIS’ recent policy changes such as the no deference policy for extensions, and denials without first issuing a request for evidence (RFE) or notice of intent to deny (NOID). The USCIS’ Policy Memorandum restoring an adjudicator’s full discretion to deny a petition or application without an RFE / NOID was published only one week after the updated NTA guidance. Working in tandem, the recent policy changes, as well as with the suspension of premium processing for H-1B, can result in serious immigration consequences in certain circumstances. For example, if a petition or application is denied because the USCIS feels there was insufficient initial evidence, and the denial takes place after the foreign national’s previously accorded status has expired, under the new removal policy the foreign national will run the risk of being placed in removal proceedings.
What happens if a foreign national is issued an NTA?
As current USCIS NTA/removal policy stands now, a foreign national whose petition or application is denied and whose previous nonimmigrant status terminated or expired while the petition was pending could leave the United States voluntarily, and in some circumstances, apply for the visa abroad. The USCIS denial letter would state that the foreign national is no longer in lawful status and would advise the foreign national to depart from the United States.
Once the new NTA policy takes effect, a foreign national who is issued an NTA for not being lawfully present at the time his/her petition is denied will need to remain in the United States until removal proceedings have ended before the Immigration Court. Foreign nationals should not ignore or leave the United States after an NTA is issued as departure after removal proceedings have commenced will in essence result in self-deportation and a removal order in absentia which can carry a 5-year ban from reentering the United States.
How can employers prepare for the USCIS’ new removal policy?
For extensions of stay with the same employer, we will work with our clients to ensure extensions are filed as far in advance as possible. By regulation, extensions can be filed no sooner than six months prior to the individual’s current status expiration date. We will recommend premium processing interfiling if an extension is not approved before a previously granted period of authorization stay expires.
For new hires, we strongly encourage all of our clients to use our pre-hire assessment process prior to making an offer of employment to a candidate who requires immigration sponsorship. Through this process, our attorneys will help vet issues and assess risks associated with the USCIS’ recent policy changes. For example, it may be advisable to have prospective H-1B employees wait until a pending extension of stay petition with a current employer is approved before starting at a new company on H-1B portability. It may also be advisable in some cases not to have an employee start work on portability at all, and instead wait for the change of employer petition to be approved. Please contact if you need additional information about our pre-hire assessment process.