Continuing Changes in Immigration Policy
Insight & Impact - Labor & Employment Newsletter 09/20/18 Eric D. Ledbetter, Emily C. Shircel
U.S. Citizenship and Immigration Services (USCIS) has issued three policy memoranda that will change 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 Academic Students, Exchange Visitors and Vocational Students
Beginning August 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 United States. This is a change from the previous twenty-year old policy under which one only accrued unlawful presence upon the issuance of a formal finding by an immigration officer or judge.
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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 United States. A foreign national who accrues more than one year of unlawful presence will be subject to a ten-year bar. These bars 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, foreign students will not accrue unlawful presence in the following situations:
- During the 30-day period before the program start date listed on Form I-20 and the 60-day grace period following completion of course study or authorized practical training
- While the student is pursuing a full course of study and any additional periods of authorized pre- or post-completion practical training
- When the student is in the so-called "cap gap" period (i.e., during the change from F-1 student status to H-1B work visa status)
- While the student's application for post-completion Optional Practical Training (OPT) remains pending
- The period of time a timely-filed (within 5 months) reinstatement application is pending with USCIS
- The period of time a student was out of status if he or she timely applied (within 5 months of the status violation) for reinstatement provided the application is ultimately approved. A student who files a timely request for reinstatement of status will not accrue unlawful presence while their request is being adjudicated. If the application is approved, the student will resume lawful status. If denied, the student will resume the accrual of unlawful presence.
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: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens
Issued on June 28, 2018, this policy memorandum would have directed USCIS to issue a Notice to Appear (NTA) requiring an alien to appear before an immigration judge when the alien is no longer lawfully present in the U.S. as a result of a denial decision by USCIS. However, two days after issuing the memo, USCIS announced it would hold the memo in abeyance pending further internal operational guidance on its implements. USCIS may re-issue the memo at some point in the future.
As background, a mandatory appearance in immigration court is generally the first step towards removal proceedings. Although USCIS has long held the discretionary authority to issue an NTA to initiate removal proceedings, the previous policy was to do so only in more serious cases, such as cases when the foreign national was found to have a criminal background or there was evidence of gang-related activity.
Policy Memorandum #3: Issuance of Certain Requests for Evidence and Notices of Intent to Deny
Effective September 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 have a practice of submitting full and complete initial filings are less likely to be impacted by this change. However, employers who routinely file skeletal or incomplete initiate filings are encouraged to reconsider this practice as it could result in a denial without the opportunity to provide additional information.
With the myriad of policy 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.