Executive Summary: In a significant policy shift, the U.S. Citizenship and Immigration Services (USCIS) recently published a new agency policy that substantially expands the authority of USCIS to put otherwise legal immigrants into deportation (also known as “removal”) proceedings. The policy vastly increases the categories of individuals to whom USCIS will issue a Notice to Appear (NTA) and significantly alters Department of Homeland Security (DHS) policy as to when USCIS, as opposed to the Immigration Customs Enforcement agency (ICE), will issue an NTA. The new policy epitomizes a dramatic shift away from the traditional role of USCIS as an immigration benefit processing agency with a service-oriented mission to one centered on immigration enforcement.

Background: USCIS recently issued new guidance that drastically expands the circumstances in which USCIS will issue an NTA, which is the charging document that compels a foreign person present in the United States to appear in Immigration Court to face removal proceedings.

Under the new guidance, which has not yet been implemented, USCIS officers are required to issue an NTA for a wider range of cases, including to legal immigrants whose extension or change of employer petitions are denied, leaving them unlawfully present in the United States. Historically, ICE was the agency that issued NTAs as the primary enforcement arm of DHS. While USCIS has always had authority to issue NTAs to refer cases to ICE for prosecution, the agency typically limited NTAs to cases involving national security concerns; certain Temporary Protected Status (TPS) cases; and certain Deferred Action for Childhood Arrival (DACA) cases. It had prosecutorial discretion not to issue an NTA and prioritized more serious cases rather than cases involving legal immigrants whose benefit applications were denied. The new policy will curtail USCIS’s discretion not to issue an NTA by subjecting such decisions to a new formal agency review process. Therefore, it is anticipated that this review process will have a chilling effect on USCIS’s willingness to exercise discretion, resulting in a steep increase of NTAs.

The new policy generally requires USCIS to issue an NTA in the following categories of cases:

  • Cases where fraud or misrepresentation is substantiated, even if the case is denied for other reasons.
  • Cases where an applicant for an immigration benefit has abused any program related to the receipt of public benefits. It remains unclear how such “abuse” will be interpreted, but this may apply to legal immigrants whose U.S. citizen children have received income-based benefits for health, nutrition, or education.
  • Criminal cases where an applicant is convicted of or even merely charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial. USCIS may also refer such cases to ICE before adjudication of an immigration benefit request, without issuing an NTA.
  • Cases in which USCIS denies a naturalization application on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States. In the employment-sponsored visa context, this could apply even where an H-1B, L-1, or TN nonimmigrant change of status or extension petition or an I-766 Employment Authorization Document was timely filed and the nonimmigrant worker had interim work authorization while the petition or application was pending.

USCIS will also continue to issue NTAs for the limited categories for which it already issued NTAs, including cases involving national security concerns; certain TPS cases; and certain DACA cases.

Even if USCIS erroneously issues an NTA to a foreign person who actually is in valid status, the NTA rules still apply, and there is no clear mechanism to withdraw it based on USCIS error.

Employers’ Bottom Line: Employment-based legal immigration has historically been far removed from the specter of deportation, but the new policy changes that. As of the date of this alert, implementation of the policy is on hold until USCIS issues internal operating procedures. Once implemented, we expect that USCIS will put legal immigrants into removal proceedings when it denies an application, petition, or request for an immigration benefit, and the foreign person’s underlying status (as reflected on an I-94 record) has expired. A foreign national’s underlying status can expire due to circumstances beyond his control such as lengthy government processing backlogs. This could impact thousands of nonimmigrant workers, as well as employment- and family-based green card applicants.

Combined with other onerous and restrictive immigration policies and trends such as a sharp increase in denial rates across multiple visa petition types due to a new USCIS policy that calls for outright denials of more cases upon initial review without first issuing a Request for Evidence; a new USCIS policy that prohibits USCIS from giving deference to its own prior approvals when adjudicating standard extension requests; and long petition processing times, the new NTA policy could result in many legal immigrants being put automatically into removal proceedings upon the unexpected denial of a routine petition.

Given the current backlog of approximately 700,000 immigration removal cases, this new policy could trap legal immigrants in a “Catch 22.” Remaining in the U.S. to face immigration removal proceedings would entail waiting a long time without work authorization while accruing “unlawful presence,” which could trigger either a three- or ten-year bar to entering the U.S. in the future. On the other hand, leaving the U.S. after an NTA has been issued would trigger an automatic five-year bar to re-entry.

The new USCIS policy drastically changes the calculus for employers who sponsor foreign workers In particular, employers should consult with their immigration counsel to consider how the new policy impacts the timeline to file work visa petition amendments and extensions; the advisability of taking advantage of H-1B portability to quickly transfer new hires from another employer; whether to process immigration benefits through USCIS or a U.S. consulate overseas; the benefits or drawbacks of using USCIS’s Premium Processing service to expedite the processing of immigration benefits, if available; the advisability of maintaining an employee’s underlying nonimmigrant visa status during the green card process; and an employee’s international travel.

There are several strategies that a company can use to protect foreign workers from removal under the new policy, but each case has unique facts which must be considered on a case-by-case basis. For example, in many cases, an employer would be well-served to pay for Premium Processing, where available, to ensure that a benefit application is processed before the worker’s underlying nonimmigrant status expires. In addition, employers should maintain a worker’s underlying nonimmigrant status during the pendency of a worker’s green card process even though it is not legally required. Employers should strive to file extensions at the earliest point possible (usually six months before the worker’s status expires) to allow the maximum processing time and a cushion to respond to any post-filing requests before the worker’s status expires. Such defensive measures will inevitably drive up an employer’s immigration-related costs but put it in the best position to protect and retain valuable foreign talent. Since the policy has far-reaching implications, careful consideration of the specific facts and procedural posture of a case are required.