On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance dated June 28, 2018 regarding when officers should issue a “Notice to Appear” (NTA). An NTA is essentially a notification to a foreign national in the United States (U.S.) that the government has determined that he or she is “removable” from the U.S. (deportable). The issuance of the NTA causes the foreign national’s name and file to be referred to the immigration courts for a removal hearing before an immigration judge. Under the new guidance, USCIS officers are instructed to issue NTAs for a wider range of cases where there is evidence of fraud, criminal activity, or when an applicant is denied an immigration benefit and is unlawfully present in the U.S.

On July 30, USCIS back-tracked for an indefinite time the effective date of this new guidance pending further review as to its implementation. Even with this reprieve, employers should be reconsidering the more serious risks of the issuance of NTAs with greater frequency in particular for status violations. This policy guidance, when implemented, will have a greater potential immediate impact in light of the new unlawful presence guidance for F, J, and M nonimmigrant visa holders, which goes into effect on August 9, 2018.

Past Practice

Historically, the issuance of NTAs by USCIS has been fairly uncommon in the business immigration world. When a foreign worker fell out of status in the U.S., it was often due to a technical violation of the terms of their authorized stay, which might be completely unbeknownst to the employee. For most of these employees, there had been a relatively straightforward way to correct whatever minor status violation occurred, and then to “reset” their lawful status and work authorization in the U.S., without any long-term repercussions to the employee. This status quo is no longer the case.

New Policy

Under the terms of this new guidance, USCIS officers will now be required to issue an NTA to foreign nationals who are “not lawfully present” in the U.S. at the time that any application, petition, or request for an immigration benefit is denied, regardless of the reason. If implemented as written, this new policy will have a direct impact on unsuspecting employers and employees, including those employees who have been legally working in the U.S. for many years.

Here is an example of the practical effect:

Consider the H-1B, L-1, E-2, or TN temporary professional worker in the U.S. – In country extensions of status filed with USCIS for such employees’ work authorization are routine. Employer petitions to USCIS to request an extension can usually be filed up to 180 days in advance of the upcoming expiration of status. USCIS often takes longer than 180 days to adjudicate the employer’s extension request, but there is a regulation which allows the employee to continue living and working in the U.S. for up to an additional 240 days after the expiration of their authorized stay, while their employer waits on USCIS.

Again, historically, if USCIS sought to deny the extension request, the employer could provide additional supporting evidence for the benefit sought. For that matter, employers could even re-file their extension petition, if they felt there was a clearly erroneous denial by the USCIS officer.

If USCIS now issues an NTA in the above scenario, the employer will be precluded from clarifying any issue with their original filing, as well as re-filing another petition to correct an officer error. Instead, the employee will be placed into a long and convoluted immigration court removal proceeding if an NTA is issued. While the employee awaits a resolution from an already overwhelmed immigration court system, they will lose their underlying work authorization based on their nonimmigrant status, and will also be unable to simply depart the U.S. to wait. Departure from the U.S. before an immigration judge’s order is issued triggers a 5-year bar to reentry to the U.S. (even if/when the USCIS ultimately approves the employer’s extension request).

Consequences for Employers

Employers will lose a valuable employee who has been lawfully working for them, often for years, and in whom the company has invested significant resources, including paying for multiple, successful extensions in the past. The only option for most employers will likely be to pay a hefty (presently $1225.00), additional filing fee to the USCIS for expedited (“premium”) processing, to ensure that any contrary findings by USCIS (well-founded or not) can be resolved before the employee’s underlying status expires. Alternatively, employers could choose to fly employees outside of the U.S. before their underlying status expires; which is a cost prohibitive prospect for many companies.

Conclusion

This scenario is but one of many examples of the potential severe consequences of this new NTA policy on employers of lawful foreign workers. Stay tuned for more detailed legal analyses on this topic soon from the DW Immigration Group.