New Immigration Policy to Deny Cases Without Issuing RFE or NOID

U.S. Citizenship and Immigration Services (USCIS) has released a new policy that gives immigration adjudicators discretion to deny any and all visa applications or petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) in cases where initial evidence is missing or does not establish eligibility. This new guidance, which becomes effective September 11, 2018, replaces a prior policy which instructed adjudicators to request additional evidence in a case, unless there was no possible way that additional evidence could fix a deficiency in the case.

The intent of this guidance is to provide immigration officers with more discretion to deny a visa application without requesting further information first. This policy has even greater implications in light of USCIS’ other recent announcement instructing officers to initiate removal (deportation) proceedings if, upon denial of an application or petition an individual is unlawfully present in the United States. 

As USCIS continues to shift away from a focus on immigration benefits to a focus on immigration enforcement and stricter standards for approval of visa petitions, employers and foreign nationals should consider the following strategies to avoid consequences imposed by these new rules:

  • Take all precautions to ensure visa petitions and applications are filed with the requisite documentation and evidence. This includes overdocumenting how the employer and employee meet all of the visa eligibility requirements.
  • Applications to extend nonimmigrant visa status (including H-1B, L-1, O-1, and others) should be filed as early as possible (up to 6 months before expiration) to avoid any lapses in nonimmigrant status.
  • Employer’s should continue to extend the nonimmigrant status of their foreign national employees until their applications for lawful permanent residence are approved, in order to avoid situations where the employee is in unlawful presence and could be deported.
  • Employer’s should consider utilizing USCIS’s “premium processing” program when filing “change of employer” visa petitions to quickly obtain work authorization for a candidate and not have a candidate risk changing employers without an approval.

These new USCIS policies reinforce the importance of ensuring all visa petitions and applications include the required evidence to show the applicant meets the visa eligibility requirements. The chances of having a family or employment-based visa petition or application denied are significantly reduced when working with qualified immigration counsel to prepare a comprehensive application.

For more information or advice on how to navigate these or any other immigration policy changes, please don’t hesitate to contact me.

What DACA Recipients & Employers Need to Know About The End of DACA

President Trump has announced his plans to terminate the Deferred Action for Childhood Arrivals (DACA) program, which provides “temporary relief from deportation” and work authorization for certain undocumented immigrants who arrived in the U.S. when they were minors. There are over 800,000 DACA beneficiaries across the country, the majority of whom are legally employed by U.S. employers.

As of September 6, 2017, U.S. Citizenship & Immigration Services (USCIS) will no longer be accepting new DACA applications, however, current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization until they expire. Individuals who currently have an initial DACA request pending with USCIS will have their cases adjudicated on a case-by-case basis. Those individuals with their deferred action expiring before March 5, 2018 must apply to renew their DACA (for a two-year period) before October 5, 2017. After March 6, 2018 no more DACA renewal applications will be accepted by USCIS.

WORK AUTHORIZATION

Through the DACA program, beneficiaries receive Employment Authorization Documents (also known as “work permits” or “EAD” cards) which provide lawful work authorization with U.S. employers. These cards are issued for limited periods of time and have expiration dates. Despite this new policy which will terminate the ability to renew EAD cards, current valid EAD cards will continue to provide lawful work authorization for those beneficiaries, until the EAD expires. This means DACA beneficiaries are allowed to legally continue working for U.S. employers with their EAD card until the expiration date on the card. While employers may not be aware of their employees who are on DACA until it comes time to reverify an employee’s work authorization in the Form I-9, Employment Eligibility Verification process, employers are not legally obligated to terminate an employee until after their EAD card has expired. 

SOCIAL SECURITY NUMBERS, DRIVER’S LICENSES, AND ADVANCE PAROLE CARDS

Social security numbers for DACA recipients will remain valid and can continue to be used for banking, education, housing, and other reasons. Driver’s licenses should also remain valid until the expiration date of the card (but double check with your State’s motor vehicle department to confirm). While the Department of Homeland Security (DHS) has indicated they will still honor valid Advance Parole documents, which provide immigration officers with discretionary authority to permit an individual to return to the U.S. after foreign travel, DACA beneficiaries are advised not to travel internationally, due to the risk of being denied re-entry into the U.S. upon return.

IMMIGRATION ENFORCEMENT

Information which DACA recipients provided to DHS in their DACA applications will not be proactively provided to Immigration Customs Enforcement (ICE), Customs and Border Protection (CBP), or shared with other law enforcement entities for the purpose of immigration enforcement proceedings, unless an individual poses a risk to national security or public safety. ICE has said that it has no plans to target DACA holders as their permits expire and that they will continue to remain low enforcement priorities. 

OTHER IMMIGRATION OPTIONS

DACA recipients may be eligible for other immigration relief either through family or employment. Employers with overseas offices may be able to employ affected individuals abroad. DACA recipients may be able to obtain work authorization and/or lawful residence in another country and may even be able to do so from within in the United States. 

Individuals and employers should contact qualified legal counsel to understand their options. As always, we will continue to monitor this recent DACA update and continue to provide additional analysis as information continues to become available. If you have any questions, please feel free to contact us.

The Reality of Trump's Proposed Immigration Policies

The dust has still not settled since Donald Trump’s win in the U.S. presidential election last week, but we are already starting to see some details regarding his campaign pledges as it pertains to immigration.  Despite there still be overwhelming uncertainty as to the specifics of his immigration policies, the general cornerstones seem to call for an increase in immigration enforcement and a decrease in the amount of immigration to the United States. That said, how realistic is Trump’s agenda?

Undocumented Immigrants

The deportation of an estimated 11 million undocumented immigrants from the United States is almost impossible. In fact, earlier this week Trump dialed back his campaign rhetoric to express his intention to prioritize the removal of around 2-3 million undocumented immigrants with criminal records, which is a position that is actually in line with the current administration’s priorities.  

Deporting all undocumented immigrants from the U.S. will require incredible amounts of new resources and funding. While many congressional Republicans might support Trump’s policies, would they support the cost?  Politico estimates it would cost $166 billion to deport all of the undocumented immigrants in our country and complete a border wall.  (No, by the way, Trump can’t force a country to spend money on something it does not want).  The Bipartisan Policy Center estimates that Trump’s immigration attrition policies could increase projected deficits by about $800 billion over the next 20 years.  By keeping immigrants in this country working, creating businesses, and making the goods and services that people want to buy we are ultimately increasing wages and employment opportunities.  Would Republicans really be so foolish as to actually spend money on large-scale nationwide attrition programs?

DACA

Trump has pledged to end President Obama’s deferred deportation program (Deferred Action for Childhood Arrivals (DACA)), which has provided “temporary relief from deportation” and work authorization to over 650,000 undocumented immigrants who arrived in the U.S. when they were minors.  While it is certainly possible for the next President to overturn this executive action, it remains unclear whether he would simply prevent future renewals of the U.S. employment authorization documents for DACA individuals, or whether he would cancel and revoke existing employment authorization documents for DACA recipients.  A more substantial concern, is whether DACA recipients would be more vulnerable to deportations based on the personal information they previously provided to the government as part of their application process.

Assuming, as Trump hinted earlier this week, that DACA recipients may not fall under his 2-3 million criminal aliens enforcement strategy, what economic benefit would arise from revoking the work permits of over 650,000 young immigrants who have been residents of the U.S. for decades, who are working and participating in the economy and attending college?  What might be the harm to U.S. employers lawfully employing workers with employment authorization based on DACA?  There may be severe consequences to our economy by eliminating valuable employees from our workforce, not to mention creating a humanitarian crisis by deporting these individuals.  

H-1B Visas

During Trump’s campaign he expressed a desire to make it harder for American companies to obtain employment-based visas for immigrant workers.  In particular, Trump called for policies to increase the regulatory costs for American businesses hiring skilled foreign workers in specialty occupations, particularly in the H-1B visa category.

While it is reasonable to expect that the new administration may add new statutory restrictions, institute stricter U.S. recruitment requirements, or increase USCIS filing fees, it is also possible that they may not make any changes to the existing employment-based visa program.  As U.S. businesses are increasingly in need of high-skilled labor (especially in STEM fields), what benefit would the U.S. achieve by limiting the amount of intelligent, professional-level foreign nationals into this country?

TN Visas

Canceling the North America Free Trade Agreement (NAFTA) treaty with Mexico and Canada was a major talking point in Trump’s campaign.  Doing so would most likely eliminate the TN visa for Canadian and Mexican nationals.  Again, the elimination of a visa, like the TN, for high-skilled immigrants in the U.S. does not seem to be in the best interest of American businesses.  Furthermore, scrapping NAFTA would also eliminate reciprocal visa options Canada and Mexico provide to U.S. workers seeking to engage in professional activities in those countries.

F-1 STEM OPT

Recent changes to the Optional Practical Training (OPT) program for foreign students on F-1 student visas and who graduated with degrees in science, technology, engineering, and mathematics (STEM), allow for an additional two years of U.S. work authorization.  This new rule could be a target under the new President.  Again, though, with U.S. employers in desperate need for STEM employees, cancelling the STEM OPT extension rule, would severely injure American companies.

“Extreme Vetting”

Trump’s most controversial policy called for some type of “extreme vetting” of foreign nationals from certain countries or certain religions.  While it is not clear what he means by this type of vetting, the possibility of increased screening could have serious consequences for U.S. employers and employment-based visa holders, due to stricter scrutiny on visa petitions and longer visa application times.  It might also make it harder for individuals to obtain U.S. citizenship.

In the end, it is realistic to expect some changes to the U.S. immigration system.  Whether all the broad promises of Trump’s campaign will become reality is a different story.  In less than 60 days, though, Donald Trump will take the oath of office as the 45th president of the United States.  Therefore, employers and individuals considering whether to seek certain immigration-related benefits, should act sooner than later.  In the meantime, please visit our website and sign up for our newsletter for the latest news regarding any changes to U.S. immigration laws.

 

Answers To Your Questions About DAPA & DACA

How and when do I apply for DACA or DAPA?

If you are newly eligible for DACA under the expanded criteria, USCIS will begin accepting applications on February 18, 2015.  If applying for deferred action as a parent (DAPA), USCIS expects to begin accepting applications by May 19, 2015.  Instructions for DAPA are still pending. Based on the evidence required for DACA applications, you will need documents that establish your identity, your relationship to a U.S. citizen or lawful permanent resident son or daughter, and your continuous residence in the U.S. since January 1, 2010. Also, all documents that are not in English need to be translated into English. 

Am I eligible for DAPA?  Will I be able to work?

To be eligible applicants will have to show they have been in the US since January 1, 2010;  they are a parent of a US citizen or lawful permanent resident born sometime before November 20, 2014; have no serious criminal history.  If approved the applicant may be able to apply for employment authorization by showing economic need. 

How long does DAPA last?

Three years, as with the new DACA application and renewal periods.

How has DACA eligibility been expanded?

Individuals who arrived in the U.S. before the age of 16, no matter their current age, are now eligible for DACA so long as they have been continuously residing in the U.S. since January 1, 2010. Prior to this announcement, applicants must have been under the age of 31 on June 15, 2012 and have been living in the U.S. continuously since June 15, 2007.

What about DACA recipients who already received a two-year renewal?

U. S. Citizenship and Immigration Services (USCIS) is currently considering ways to extend already issued two-year renewals and work authorizations to three years.  

After I apply, how long do I have to wait for a decision?

USCIS aims to complete all applications received by the end of 2015 before the end of 2016. USCIS will provide each applicant with a notification of receipt within 60 days of receiving the application. 

What will happen after 3 years?  Will the next President continue DACA and DAPA?

DACA and DAPA are both discretionary processes. A new president could continue or cancel either or both processes after 3 years. Only Congress can change the law. 

Can I apply for DACA or DAPA if I have been deported?

No.  DACA and DAPA only apply to qualified individuals present in the U.S.

Can I travel with DACA or DAPA?

It is expected that individuals granted DAPA may separately apply for a travel document (formally known as advance parole) under certain circumstances.  Please speak with a licensed attorney to evaluate your eligibility.

Will the state where I live give me an ID or drivers license because of DAPA?

Neither DACA nor DAPA require state authorities to issue state identification documents or driver's licenses. The decision whether or not to issue driver's licenses is made by each state individually, so check with your local department of motor vehicles to find out.

What if my case is denied or I fail to pass a background check?
Under USCIS's current policy, only cases involving criminal offenses, fraud, or a threat to national security or public safety will be referred to Immigration and Customs Enforcement (ICE) for deportation proceedings. Those who knowingly misrepresent or fail to disclose facts will not receive "favorable consideration." If you have ever been arrested or convicted of any crime, please consult with an attorney before you apply.  

Will the information I share in my request for consideration of deferred action be used for immigration enforcement purposes?
Unless USCIS determines that you meet the criteria for issuance of a Notice to Appear or a referral to ICE, the information you provide in a deferred action application will be protected from disclosure to ICE or Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings. However, the information may be shared with ICE, CBP, and other national security and law enforcement agencies for reasons other than removal proceedings, including: 

Where can I get additional information on DACA and DAPA?

The executive actions, including the enforcement priorities and DACA/DAPA memoranda are posted on the Department of Homeland Security's website at http://www.dhs.gov/immigration-action. The US Citizenship and Immigration Services also has comprehensive information about the deferred action processes on their website at http://www.uscis.gov/immigrationaction. Please remember, while President Obama announced the broad outlines of the immigration executive actions on November 20, 2014, neither the expanded DACA nor the DAPA processes are in place yet. Be careful not to get scammed.

Obama’s Immigration Order Will Benefit Millions of Undocumented Workers & Families

President Obama has announced a new “deferred action” program for undocumented aliens who have been living in the U.S. for at least five years, have at least on U.S. citizen or lawful permanent resident child, register with the U.S. government, pass a series of background checks and pay their taxes.  This executive order will likely provide work authorization for as many as five million undocumented aliens.

The details of this executive order will be released in the coming weeks and may include processes to speed up the permanent residency process for highly-skilled foreign workers and entrepreneurs, as well as work authorization for spouses of certain H-1B visa holders.