These are difficult times in the U.S. immigration landscape, even for foreign nationals who are in the U.S. legally. We often hear in the news about the separation of children whose parents are seeking asylum in the US, the de-naturalization task force, or processing backlogs. We hear less in the news about the new restrictionist, anti-immigration tactics the current administration is taking against legal immigrants, but those tactics are alive and well, and are being launched on a weekly (if not more frequent) basis.

The most recent policy changes that were announced this past week and the week before put even foreign nationals who are in the U.S. legally into the danger zone for removal proceedings.

The week of July 4^th, USCIS announced a new policy memo that directs USCIS to issue a Notice to Appear (NTA) when they deny a petition or application in a much broader set of circumstances than before, including;

• Where there is abuse of public benefits;
• N-400 cases (naturalization) where the application is denied based on the good moral character requirement, due to a criminal issue;
• Perhaps the most frightening for our clients: where the denial leaves the applicant or beneficiary without valid immigration status. For example, let’s say that Sam is an H-1B worker and his I-94 expires 7/30/2018. Sam’s employer timely files the H-1B extension before the expiration of his current I-94. USCIS takes months to process the H-1B petition (as is typical). Sam is able to remain in the U.S. (until a decision is made) and keep working for his H-1B employer for up to 240 days beyond the expiration of his I-94. Finally, in December 2018, USCIS denies the petition erroneously, for a reason that they never would have denied previously. At this point, Sam it out of status. Prior to this memo, we would have immediately filed a new H-1B petition. It’s possible that Sam would have had to leave the country, get the H-1B visa stamped and re-enter, but he could do that and everything would be resolved within a matter of a few weeks.
  • Under this new memo, USCIS would instead issue an NTA to begin removal proceedings, once the petition has been denied.
  • This would also apply in other circumstances, including family-based cases that are denied.

The second memo, published at 5:00 pm on Friday July 13^th, almost seems to be a companion memo to the first and says that USCIS will now deny a petition or application in the following instances, instead of issuing an RFE (request for evidence) or NOID (notice of intent to deny):

• Cases where the applicant or petitioner has no legal basis for the benefit/request sought (frivolous filings);
• Most concerning for us: “If all required initial evidence is not submitted with the benefits request, USCIS in its discretion may deny the benefit request for failure to establish eligibility based on lack of initial evidence.” The memo gives the example of an adjustment of status filing where the I-864 was required but was not included.

The second memo is to become effective on 9/11/2018 (interesting date, no?) for any filings received on or after that day. At this point we do not know how these memos will be implemented. That is, we don’t know what kind of discretion USCIS officers will use, how quickly the NTAs will come, etc. We will certainly keep our clients and friends updated as we have more information. For now, we highly advise the following for our clients including individuals, employers, and employees:

• Maintain your nonimmigrant status for as long as you possibly can when you applying for permanent residence. It at all possible, do not rely on having filed the I-485, and using the employment authorization document (EAD) to work.
• Submit the extension of status for your nonimmigrant status as soon as you possibly can before the current I-94 expiration (usually up to 180 days in advance). If the petition is denied, hopefully you will still be in status and can re-file to address the situation.
• Make sure to document your immigration filings well, and make sure that each piece of required initial evidence is included in the initial filing.
• At this point, I recommend that no one try to file petitions or applications on their own. Given these draconian changes, one minor mis-step can result in immediate denial, and possibly the beginning of removal proceedings.

These are dark days in U.S. immigration law, and we have significant challenges, both seen and unseen in front of us. However, we are here to support our clients, friends, and family who are personally impacted by these and other changes. We are committed to fighting the good fight and will carry on, full of hope for a brighter future for our clients, our country, and the world.

Do you need assistance with a family-based or employment-based immigration matter? Please contact our office today to see how we may be able to assist you! Emily Sumner is an immigration lawyer in Richmond, VA but we serve clients throughout the U.S. and around the world. Please call us at 804-396-3412 or email us at info@sumnerimmigration.com. We look forward to hearing from you!