Two recent policy memos from U.S. Citizenship and Immigration Services (USCIS) will adversely affect the ability of non-immigrant workers (such as H-1B workers) to remain in the United States legally.
USCIS has instructed its adjudicators to deny visa petitions (including extensions of stay) on certain cases without seeking further information or stating a reason for the denial. This will permit USCIS to deny visa petitions without issuing requests for more information (i.e., Requests For Evidence (RFEs) which are becoming more commonplace). In a memo issued on July 13 announcing the change, USCIS said it was intended to prevent frivolous filings and incomplete filings intended as “placeholders.” The memo applies to most visa petitions (e.g., H-1B, L-1, TN-1, O-1), but not to Deferred Action for Childhood Arrivals (DACA) applications.
Such policy memo arose after the publication of another USCIS memo stating that USCIS would start referring people for deportation when it denies a visa petition and that denial leaves the foreign national with no legal immigration status.
These changes are likely to result in more deportation proceedings. This is so because USCIS may start responding to more and more visa petitions by denying them, perhaps resulting in the foreign national being placed in deportation proceedings if his/her authorized stay has expired while the petition was pending.
As a result of the foregoing, the adjudication process of non-immigrant visa petitions is now more unforgiving than ever and employers are cautioned that no petition may be considered routine.
Indeed, the concert of these two memos makes it incumbent for both employers and their immigration counsel to prepare the most thorough non-immigrant visa petition as possible (whether it be a transfer or an extension) and evaluate whether premium processing (at an additional filing cost) is warranted so the foreign national remains in valid immigration status at all times pending final adjudication.
The memos come after a series of other policy changes that scrutinize H-1B petitions for not only H-1B workers who are placed at third party client locations, but also H-1B petitions for many job classifications that previously were not questioned as being specialty occupations (e.g., Computer Systems Analysts, Management Analysts and Operations Research Analysts), making it more difficult than ever for employers to sponsor qualified H-1B workers.
In light of the foregoing, now more than ever, it behooves employers to engage experienced immigration counsel when seeking to employ (or continue to employ) foreign national workers.
If you have any questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.