U.S. Citizenship and Immigration Services (USCIS) has issued two policy memoranda that are changing well-established immigration policy. These changes have the potential to greatly impact temporary immigrants in the United States and cause adverse immigration consequences. Employers should be aware of them and any potential impact on their employees.

Policy Memorandum #1: Accrual of Unlawful Presence for Students and Exchange Visitors

Beginning Aug. 9, 2018, if an academic student, exchange visitor, or vocational student on a temporary F, J, or M visa fails to maintain temporary immigration status, he or she will automatically begin accruing unlawful presence in the U.S. This departs from the previous 20-year-old policy under which one only accrued unlawful presence upon the issuance of a formal finding by an immigration officer or judge.

A foreign national who accrues more than 180 days of unlawful presence – whether intentionally or through inadvertence – will be subject to a three-year bar on reentering the U.S. A foreign national who accrues more than one year of unlawful presence will be subject to a 10-year bar. These bans go into effect immediately upon the individual’s departure from the United States.

Under the new policy, violations of status will begin the day after the student or exchange visitor no longer pursues an authorized course of study or other authorized activity; the day after he or she engages in an unauthorized activity; or the day after completing the course of study or program (including any authorized practical training plus any authorized grace period). Despite the change in policy, there are certain situations where foreign students will not accrue unlawful presence including while the student is in the so-called "cap gap" period and while the student’s application for Optional Practical Training (OPT) remains pending.

Accumulation of unlawful presence can have serious immigration consequences, so it is critical that students and exchange visitors work with their employers, immigration attorneys and school officers to ensure they are not in violation of their status.

Policy Memorandum #2: Issuance of Certain Requests for Evidence and Notices of Intent to Deny

Effective Sept. 11, 2018, immigration officers now have the authority to deny a petition without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if the proper initial evidence is not submitted or if the evidence in the record does not establish eligibility. This policy memorandum effectively rescinds previous guidance that directed officers to issue an RFE or NOID when the facts and the law warranted. Prior to this new guidance, denials without the issuance of an RFE or NOID were only appropriate if there was no possibility that the deficiency of the petition could be cured by submission of additional evidence.

Employers who submit full and complete initial filings are less likely to be impacted by this change. However, employers who routinely file skeletal or incomplete initial filings are encouraged to reconsider this practice as it could result in a denial without the opportunity to provide additional information.

Impact:

With the myriad of changes within U.S. immigration policy, employers are encouraged to work closely with their immigration attorney to ensure internal corporate immigration programs remain fully compliant.