Because of all the moving pieces between Federal, State and Local regulations, managing immigration in the workforce is very complex and requires regular attention. If you, the employer, are not skilled in US immigration law, you may be unintentionally overlooking important tasks or paperwork updates that could put your business at risk of noncompliance. In a five part series, JD Supra, Mintz Levin, highlights 8 Best Practices for Managing US Immigration Compliance in 2018 (Part 1 of 5).
In this five-part series, we highlight three important USCIS policy changes and provide eight best practice tips in light of the ever-tightening U.S. immigration environment. This is the first installment in the series.
The Trump Administration has made immigration enforcement and the restriction of immigration to the United States a high priority. Most of the U.S. immigration headlines relate to the methods the Administration is using to deter immigrants without a legal immigration status from seeking to enter the U.S., and to detain and remove those who have entered without a visa, even if it means separating family members in the process.
Although most of the headlines focus on the government’s strict approach to immigration enforcement with regard to asylum seekers and unskilled migrants, the Administration is making unprecedented, and in many cases harsh changes to the approach and rules relating to the world of business immigration. For those who manage the immigration programs of U.S. employers that sponsor foreign nationals for temporary work visas and permanent residence (“green card” status), the stakes have never been higher, because the risks to employers and to their foreign workers have never been higher.
We highlight three important USCIS policy changes below:
- In the fourth quarter of 2017, USCIS announced that it would no longer apply any deference to prior approvals it has issued for anyone, and all petitions would be reviewed de novo. Therefore, visa renewals and extensions for employees are no longer routine matters. This is true even for employees whose prior petitions were approved with no question, and who now have more experience and more responsibility in their current positions . It took some time for USCIS to fully implement this new policy, but now it is in full force. For example, in Q1 of 2017, H-1B RFE’s (Requests for Evidence) stood at 17%. By Q4 of 2017, H-1B RFE’s rose to 69%.
- On June 28, 2018, USCIS issued an unprecedented Policy Memorandum giving itself the right to issue a Notice to Appear (“NTA”) to any foreign national where upon denial of the benefit requested, the foreign national would no longer be in a lawful immigration status. In such cases, a foreign worker who is issued an NTA must appear before an immigration judge to defend himself or herself against a charge that he/she is removable (deportable) from the US. On July 30, 2018 USCIS announced it is delaying implementation of this new NTA policy until it finalizes an implementation plan for this radical change in operations. This is a temporary reprieve and it is expected that the new policy will go into effect as soon as USCIS is ready to implement it.
- On July 13, 2018, USCIS issued another Policy Memorandum granting itself the discretion to outright deny an application or petition without first issuing an RFE or a Notice of Intent to Deny (“NOID”). This new memo rescinds and supersedes a June 3, 2013 Policy Memorandum which instructed USCIS officers to request additional information if the officers found the petition or application was insufficient or not immediately approvable.
In light of the ever-tightening U.S. immigration environment, we will offer eight best practices throughout this series.