Prince_Fan

New USCIS Policy Will Carry Harsh Consequences For Applicants

Recommended Posts

Prince_Fan

The leadership of U.S. Citizenship and Immigration Services (USCIS) seems determined to refute the notion that people in the federal government don’t work hard. To the contrary, top USCIS officials work around-the-clock to come up with creative ways to make life as difficult as possible for those who submit applications to work or live in the United States.

The most recent USCIS effort to discourage or prevent foreign nationals from joining a loved one, making a career in America, or even departing the U.S. without negative consequences is a June 28, 2018, policy memorandum on updated guidance on Notices to Appear (NTAs). As explained below, few Americans likely understand the dire consequences a foreign-born professional placed in deportation proceedings will face under the new policy – even if he or she did nothing more than have an application denied after waiting a long time for a decision.

To better understand the new policy and its implications, I interviewed Jennifer Minear, a director in the immigration practice group at McCandlish Holton. Jennifer has practiced immigration law, with an emphasis on employment-based immigration, for more than 14 years.

 

 

 

Stuart Anderson: How bad do you think the consequences could be from the USCIS memo on Notices to Appear?

Jennifer Minear: The potential harsh consequences as a result of this memo are staggering.

Anderson: Before we get to the consequences, let’s start with some basics. What is a Notice to Appear or NTA?

Minear: A Notice to Appear is a charging document issued by the Department of Homeland Security through any of its component agencies – Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services. The purpose of the Notice to Appear is to place an individual into deportation proceedings.

Anderson: How is the new policy different?

Minear: In the past, USCIS has generally referred matters of potentially removable foreign nationals to ICE to determine whether removal proceedings should actually be initiated by issuing a Notice to Appear. However, under its new policy memorandum dated June 28, 2018, USCIS has greatly expanded its mandate for issuing NTAs without first consulting ICE. Now, USCIS will issue a Notice to Appear on its own initiative and thereby place individuals in removal proceedings upon denial of an application or petition for immigration benefits if the person is deemed removable at the time of the denial.

Anderson: What are the consequences of an individual receiving a Notice to Appear vs. in the past when a person may have decided to depart the United States voluntarily?

Minear: Previously, if an application or petition for immigration benefits were to be denied, the foreign national might be able to depart the U.S. relatively quickly and either remain abroad or obtain approval for another visa that would enable him or her to return to the U.S. However, once an individual is issued a Notice to Appear, he or she is legally obligated to remain in the U.S. and appear before an immigration judge.

Anderson: What happens if an individual fails to appear?

Minear: If the person fails to appear in immigration court in compliance with the Notice to Appear, then a deportation order will be issued against the person. The failure to appear for removal proceedings carries a 5-year bar on re-entry to the United States. While it would be possible to apply for a waiver of that bar, there is no guarantee that the waiver would be granted. Having been previously ordered deported from the U.S. is likely to hamper one’s chances of being approved for another visa to return.

On the other hand, if the individual does remain in the U.S. to contest the removal proceedings – a process that could take years to complete due to the backlogs in immigration courts – he or she is considered “unlawfully present” during all of that time. If the individual prevails in the removal proceedings, his or her status will be restored and the unlawful presence will be wiped away. But if the individual loses, he or she will likely be subject to a 10-year bar on re-entering the U.S., depending on how much unlawful presence accrued by the time the final deportation order was entered.

Anderson: Can this happen to an H-1B professional whose employer files for an extension?

Minear: Yes. Many H-1B professionals whose petitions for initial or extended H-1B status are ultimately denied are likely to be placed into deportation proceedings under this policy.

Anderson: What will happen to the careers of individuals placed into deportation proceedings? Are people even allowed to work and support themselves while waiting for their immigration court appearance?

Minear: The consequences could be extreme because almost all people in removal proceedings are unable to obtain legal authorization to work. While the individual would be free to appeal a denial of the visa petition or other application that resulted in them being placed into removal proceedings and that may ultimately result in their status and employment authorization being reinstated and their deportation proceedings terminated, there is no work authorization generally available to those who are awaiting the conclusion of removal proceedings.

For most people, being placed in proceedings is a legal limbo where you are not lawfully present, yet not able to leave without triggering a bar on re-entry, and not able to work legally.

Anderson: Can you walk through how the new USCIS policy memo could affect an H-1B visa holder?

Minear: For example, an H-1B professional who has been legally employed in the U.S. in H-1B status in the past is permitted by federal regulation to continue living in the U.S. and working for the sponsoring employer for up to 240 days while an extension petition is pending – as long as the extension petition is filed prior to the expiration of the prior H-1B petition.

However, due to significant processing backlogs, USCIS very often takes 6 months or longer to adjudicate H-1B extension petitions. During that time the previous H-1B petition may expire, leaving the H-1B professional solely dependent on the 240 days of work authorization permitted under the regulation – and without any underlying H-1B status unless/until the H-1B extension petition is approved.

If the petition is ultimately denied, then such a person would be deemed unlawfully present as of the date of the denial and, under this new policy, an NTA would be issued. This is a very real scenario. The number of H-1B denials is increasing. That is due at least in part to changes in adjudications policies that, for example, now do not grant any deference to prior approvals of H-1B petitions filed by the same company on behalf of the same professional doing the same job identified in the prior petition.

Anderson: How could an international student be affected by the USCIS policy memo on Notices to Appear?

Minear: A number of international students who have entered the country to attend U.S. colleges and universities may also be placed in deportation proceedings under this new policy. This is because USCIS has also recently published another new policy that will take effect on August 9, 2018. That policy redefines “unlawful presence” to include any violation of student status. [See “USCIS Policy Change Could Bar Many International Students.”]

For example, if USCIS determines in the course of adjudicating an application for an immigration benefit that a student’s employment was unauthorized, or that the student’s school failed to update or maintain the student’s records, then USCIS could deny the application for immigration benefits, make a finding that the student is unlawfully present, and issue a Notice to Appear to the student. This is particularly alarming in that the student may have no prior warning that he has done anything to violate the terms of student status before removal proceedings are initiated against him.

Anderson: What about managers and executives?

Minear: Multinational managers or executives who have been transferred to the U.S. to work for U.S. offices of foreign companies may also become deportable under this new policy. When such executives apply for a green card, their employers must file an immigrant petition for them – and the processing times can take many months. If the manager or executive’s underlying temporary work visa (called an L-1A and which can only be maintained for a maximum of 7 years) expires while the immigrant petition and green card application are pending, and then USCIS denies the immigrant petition, the manager or executive and his family members will be issued NTAs and placed into removal proceedings – even if the denial of the petition was a clear error and there is a valid basis for appeal.

Anderson: What are the likely resource impacts of this new policy?

Minear: This will be an overwhelming administrative burden for an agency that is already struggling with ever increasing processing times and backlogs across all application types. USCIS can also expect increased litigation over denied applications and petitions now that the consequences of those denials are even more severe due to the virtual certainty of being placed in deportation proceedings.

In addition, the immigration court backlog is already over 700,000 cases as of May 2018. This new Notice to Appear policy from USCIS will only further contribute to the already enormous backlogs. Right now, many cases are not calendared for merits hearings until sometimes yearsafter the NTA is issued. Those backlogs will likely grow exponentially given the number of new cases that will be added to the docket as a result of this policy.

Anderson: What advice do you have for individuals?

Minear: Foreign nationals need to take all possible precautions to ensure that their work visa petitions are filed and adjudicated to completion before the foreign national’s existing status expires, so that if the petition is denied, the foreign national will still be in another status and can avoid a Notice to Appear.

Petitions for nonimmigrant (temporary) visas may be filed up to 6 months in advance of the anticipated work start date. Extensions may be filed up to 6 months in advance of the expiration date of the current petition. Employers should plan to file petitions at the earliest possible moment. When available, the petition should be filed with a request for “premium processing,” which requires USCIS to take action on the petition within 15 days of filing.

Anderson: What about advice for employers?

Minear: Similarly, employers should consider sponsoring their workers for green cards at the earliest possible moment in order to maximize the chances the green card may be approved before the employee’s underlying temporary work visa expires or is denied for extension.

Where premium processing is not an option to ensure expeditious decision-making from USCIS, employers and foreign nationals may need to consider filing mandamus actions against USCIS to compel the adjudication of the application or petition for immigration benefit before the foreign national’s underlying immigration status expires.

Anderson: What does this USCIS memo on Notices to Appear and its consequences say about the state of immigration policy in America today?

Minear: I think this policy memo represents another piece of a well-organized and systematic effort by the current administration to make the process of legal immigration to the United States as difficult as possible for both immigrants and the employers who sponsor them. Other recently introduced policies, procedures and adjudication trends within USCIS have injected so much uncertainty and unpredictability into the process of seeking U.S. work authorization it has become almost impossible to advise clients as to what the outcome might be of a particular petition or application for an immigration benefit.

I fear that this policy, combined with others previously announced, will discourage the best and brightest minds from around the world from wanting to come to our country and contribute to our economy and culture. Indeed, that appears to be the intent of these policies – to frustrate and frighten people enough that they will not even attempt to navigate the process of coming here legally. Even if that is not the intent, that is sure to be the result.

Share this post


Link to post
Share on other sites
Prince_Fan

Anderson: Can this happen to an H-1B professional whose employer files for an extension?

Minear: Yes. Many H-1B professionals whose petitions for initial or extended H-1B status are ultimately denied are likely to be placed into deportation proceedings under this policy.

Share this post


Link to post
Share on other sites
Prince_Fan

//Ivvala oka group advocacy vallaatho matlaadatam jarigindi 
Bags ki stickers pettukondi india address annaru 
H4 ead nov ennikla tarvatha gone....//

 

 

The above content is lifted from CCDB

Share this post


Link to post
Share on other sites
rapchik
5 minutes ago, Prince_Fan said:

//Ivvala oka group advocacy vallaatho matlaadatam jarigindi 
Bags ki stickers pettukondi india address annaru 
H4 ead nov ennikla tarvatha gone....//

 

 

The above content is lifted from CCDB

 

U mean 2019 Nov ??.... ayiteh chala time undhi 1.5 year..dhunestham   #~`

Share this post


Link to post
Share on other sites
summer27

pedda disco nadustondi kinda..go and disco

 

 

Share this post


Link to post
Share on other sites
Run

Anderson: What about advice for employers?

Minear: Similarly, employers should consider sponsoring their workers for green cards at the earliest possible moment in order to maximize the chances the green card may be approved before the employee’s underlying temporary work visa expires or is denied for extension.

ayine unte white saree enduku annattu undhi braces_1

Share this post


Link to post
Share on other sites
ARYA
2 minutes ago, Run said:

Anderson: What about advice for employers?

Minear: Similarly, employers should consider sponsoring their workers for green cards at the earliest possible moment in order to maximize the chances the green card may be approved before the employee’s underlying temporary work visa expires or is denied for extension.

ayine unte white saree enduku annattu undhi braces_1

adi raaadu idi ivvaru @3$%

Share this post


Link to post
Share on other sites
Flantharpakadi
1 hour ago, Prince_Fan said:

//Ivvala oka group advocacy vallaatho matlaadatam jarigindi 
Bags ki stickers pettukondi india address annaru 
H4 ead nov ennikla tarvatha gone....//

 

 

The above content is lifted from CCDB

CCDB endi??

Share this post


Link to post
Share on other sites
ARYA
55 minutes ago, Chakram12 said:

Hbd baa 

thnx baa +-

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now