On August 17th, USCIS updated guidelines for OPT STEM extensions. The student visa program allows international students the opportunity to gain practical training. For F-1 student’s with degrees in science, technology, engineering, and math, extensions are available to receive temporary employment privileges by an additional duration of 24 months. To qualify, applicants must have a bachelor’s degree in a STEM field as well as other requirements. The program allows students to receive more hands-on experience with employers in a field relevant to the student’s educational background.
Several months ago, however, USCIS made changes to online regulatory guidelines. These changes made clear that students were expected to work only at the worksite related to their STEM OPT employer. Therefore, the previous guidelines prohibited anythird-party or other off-site placement. Thus, ICE worksite visits would be conducted only at the primary address of employment listed on the student’s application. For many, this change limited students from receiving diversified experiences at different worksite related to their employment.
USCIS Renews Flexibility
The most recent changes to the OPT STEM website retract previous guidelines and offer students greater options and flexibility for training experience. According to USCIS, the Department of Homeland Security (DHS) clarified that STEM OPT students once more have the ability to “engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met.” USCIS reminds beneficiaries of STEM OPT that a “bona fide” employee-employer relationship must be maintained if a student receives training outside of the employer’s principal location. DHS will review each case to ensure that employers listed on the Training Plan maintain the required employee-employer relationship. Students should ensure that a third-party placement or offsite placement does not compromise their employee-employer relationship with their documented supervisor.
On September 11, 2018, the United States Customs and Immigration Service will adopt new guidelines for the issuance of Request for Evidence (RFE) and Notice of Intent to Deny (NOID). Through no change to the laws of legal immigration, these new guidelines present one of the greatest threats to legal immigration in recent history.
Overview of Changes
In a series of policy memorandums, USCIS gave notice of new guidance for adjudicating officers. This guidance allows adjudicators to deny a request for immigration benefits without issuing an RFE or NOID. Previously, USCIS required adjudicators to send notice to applicants who provided insufficient evidence for an application or petition (RFE & NOID). Without a barrier to outright denial, those applying for immigration benefits can now receive denials if adjudicators determine that there is insufficient evidence.
Who is at Risk?
All applicants, from applications for naturalization to applications filed under the Violence Against Women Act (VAWA), are at risk under these new guidelines. After September 11th, applicants will be at risk of outright denial of their application or petition. With full discretionary power, USCIS adjudicators will be unforgiving of even small errors in applications. Therefore, if a naturalization application is missing a single document of evidence, a USCIS adjudicator can now deny the application without sending a notice for additional information or allowing the applicant to provide an explanation for the missing evidence.
Impact of Denial
If an applicant is denied benefits, then the petitioner or applicant will have to resubmit their application. Meaning, each applicant must repay all immigration fees regardless if their current employment visa was compromised by the denial. However, this is the best case scenario considering further USCIS changes regarding Notices to Appear (NTA). Under this regulation, some applicants who receive outward denials will be required to appear before immigration court to face removal proceedings. The devastating impact of these policies will impact families and highly skilled professionals alike. As September 11thapproaches, all applicants for immigration benefits must be extremely thorough in their applications. If you require assistance with any of your applications, please feel free to schedule a consultation.
The H-4 EAD program allows certain dependents of H-1B highly skilled nonimmigrant workers the opportunity to apply for employment benefits. The work program is administrated by the United States Customs and Immigration Service (USCIS) under the direction of the Department of Homeland Security (DHS). However, the program is under threat by both a federal court of appeals and the president.
As is the case for many legal immigration benefits, the Trump administration and supporters are determined to curb the H-4 EAD benefits. The lawsuit, which threatens the spousal work program, was filed by Save Jobs USA. The complainant claims that the H-4 EAD program depresses wages and takes jobs from the American workers. Although the claims lack vital evidence, the Trump Administration does not support the Obama era program and may soon release new regulations that would end the H-4 EAD program and render the lawsuit unnecessary. USCIS continues to cite President Trump’s executive Order, Buy American Hire American, as the guidance for a proposal to end the spouse work program.
On February 21st, the U.S. Court of Appeals for the District of Columbia granted a motion from the Trump Administration to delay the case for 90 days on the condition that the Administration, and further the DHS, would release new regulations for the H-4 EAD. However, the case has continued to be delayed as DHS leadership continues to review the proposal to end the program. On August 20th, DHS notified the federal appeals court in D.C. of further delays to a finished proposal. However, DHS representatives also stated in the notice that the agency fully intended to go forward with the proposal once it has been reviewed by officials in the executive branch. For beneficiaries of the program, the imminent proposal does not necessarily mean an immediate change to the program, supporter will have an opportunity to oppose the proposal during the public comment period. However, because there have been several delays from DHS, it is uncertain when the proposal will be released.
In most cases, the United States Customs and Immigration Service (USCIS) requires only non-U.S. citizens to report a change of address. However, if you are a U.S. citizen serving as a sponsor for a non-U.S. citizen, you may have to submit a Form I-865 to update your most recent address.
If you are a foreign national who is in the United states for a period of more than 30 days, or who is not an official government representative or diplomat for your country, you must report any change to your address within 10 days. Non-U.S. citizens can change their address online through an electronic Form AR-11. There, individuals with open or recently approved applications and petitions can amend their applications at the same time with the online change of address system. Although all non-U.S. citizens may file their Form AR-11 through the mail, the following must submit address changes through mail, not through the online portal nor through phone: Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant filed as VAWA self-petitioner; Form I-914, Application for T Nonimmigrant Status (“T visa”); Form I-918, Petition for U Nonimmigrant Status (“U visa”); Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse; and Form I-485, Application to Adjust status as an abused spouse under the Cuban Adjustment Act. Willful failure to notify USCIS of a change of address will result in a misdemeanor charge and could result in deportation proceedings. U.S. citizens, however, must file a separate notice of address change if they are a sponsor for a non-U.S. citizen.
If you are a sponsor for a non-citizen i.e. if any time in the past you have completed Form I-864, you will need to complete a Form I-865, Sponsor’s Notice of Change of Address, if your address changes while the sponsorship agreement is still in place. Sponsors, who are citizens of the United States, have up to 30 days to submit a signed Form I-865 to USCIS following the change in permanent address. Each sponsor must submit a separate Form I-865, regardless if they share the same address. In many cases, sponsors must submit multiple notices for each relocation while the sponsorship agreement remains in force, which can span several years. The sponsor will maintain an obligation to report a change of address until the sponsorship agreement is no longer in place (e.g. the sponsored immigrant becomes a U.S. citizen or the application is abandoned or void). Failure to report an address change may result in fines ranging from $250 to over $5,000. Upon submitting the Form I-865, sponsors may receive further correspondence from USCIS for further documentation confirming the change of address.
These last several months featured some of the most radical changes to legal immigration in recent history. American businesses interested in hiring foreign nationals now struggle to stay updated on new procedures and practices coming out of USCIS, especially regarding the approval of highly skilled employees. Many employees capable of filling highly skilled, high demand positions are now denied H-1B benefits under new processing procedures. Many companies are shocked as many potential employees considered a shoo-in for H-1B benefits in years past now face increased requests for evidence (RFE) or straight out denials. The current presidential administration’s distaste for legal immigration is not only evident in recent rhetoric, but also in the numbers. Fiscal Year 2017 (FY 17) saw a drastic increase in both RFEs and denials following the inauguration of the current president.
According to the National Foundation for American Policy (NFAP), FY 2017 saw the most drastic changes in legal immigration between the 3rdand 4thquarter, coinciding with the first several months of the Trump administration. In fact, between the 3rdquarter and 4thquarter of FY 2017, RFEs for H-1B petitions increased by over 120%, a jump from 28,711 in quarter three and 63,184 in quarter four. This increased scrutiny from USCIS adjudicators was far from indiscriminate; nearly three out of four H-1B applicants from India received a request for evidence in the 4thquarter. Comparably, applicants from other countries received RFEs at a rate of 61% in the 4thquarter of FY 2017. Foreign nationals from India were further disadvantaged in the 4thquarter with a 42% increase in the rate of H-1B petitions deniedfor compared to professionals denied in the 3rdquarter of 2017. In quarter three, only about one out of six applicants from India were denied H-1B benefits compared to nearly one out of four in quarter four (16.6% and 23.6% respectively). Other countries experienced a similar decline, with denial rising from 14% to 19.6% from the 3rdto 4thquarter. In conjunction with recent changes to notice of denials and requests for evidence, the upward trend of both H-1B RFEs and denials may result in an unprecedented rate people leaving the country.
In the last couple of weeks, the buzz surrounding recent memos released from the United States Customs and Immigration Service (USCIS) have left many on edge. In such a short period of time, USCIS has made historic levels of change to immigration law. Now, with talk of NTAs, RFEs, and NOIDs those affected by recent changes may be confused and left behind as news continues to progress. In this article, we break down the potential consequences of a Notice to Appear, or NTA, and how USCIS’s new memo endowing all adjudicating officers with the power to freely issue NTAs impacts foreign workers who are legally in the United States.
What is a Notice to Appear (NTA)?
Recently, much of national debate has centered around one form of deportation: expedited removal. Such as in the case of family separation seen in the news, undocumented foreign nationals within 100 miles of the United States Border undergo removal proceedings without a hearing before an immigration judge. Unlike expedited removal, the issuance of an NTA is the first step of a longer, more judicial deportation process. If a foreign national is found to be removable from the United States, an official federal charging document is issued in the form of an NTA. The NTA is a formal notification document stating the beginning of formal federal court proceedings. Individuals who receive an NTA must appear before an immigration judge and have the opportunity to defend their eligibility for relief from deportation, either individually or through representation through an attorney. Following the issuance of the NTA, the appearance before the immigration judge serves as an opportunity for foreign nationals to argue why they should be allowed to remain in the United States. However, failure to persuade a judge results in an order of removal and, at minimum, bans a foreign national from re-entering the United states for five years. The individual is faced with the same consequences if he or she leaved the U.S. voluntarily (self-deportation) rather than attend the court hearing. To save on court fees and possible further penalties, many opt to voluntary leave the United States upon receiving a NTA by requesting voluntary departure through the Department of Homeland Security.
Impact of USCIS Memo
As previously reported, the June memo grants USCIS officials the ability to issue NTAs without referring cases to ICE for further investigation. Soon, a foreign national working legally in the United States is at risk of receiving an NTA, and consequently at risk of deportation, if USCIS denies their application. With issuance of NTAs on the rise, there could be a record level of deportations.
When necessary, employers must terminate a foreign national employee. Typically, once a terminated employee leaves the company, the employer is no longer obligated to fulfill responsibilities as an immigration sponsor. At least, many employers believe that their responsibilities end at termination. However, years later federal investigators may expect your company to produce documents from your previous employees. Failure to do so could result in thousands of dollars of unwanted fines.
For all employees, foreign born and native, employers must collect and retain employment eligibility forms, or the I-9 document, completed on or before the employee’s first day at the job. An employer must keep the Form I-9 for every employee for three years following the beginning of employment or one year after the employee is terminated, whichever is later. If a company is audited, federal officials will expect Form I-9 documentation for all employees. Failure to comply can result in fines ranging from hundreds to tens of thousands of dollars. Employers should purge any Form I-9s that are no longer required.
Labor Condition Application
Employers of H-1B specialty workers are all too familiar with the Labor Condition Application, or LCA. Documenting the conditions of the H-1B employee’s official worksite helps to ensure that employers make H-1B petitions in good faith, without fraudulent intent. If an employer terminates an H-1B employee, the employer maintains an obligation to provide evidence of documentation related to the employee for up to one year after the LCA expired or was withdrawn. In addition, federal examiners require employers to present the LCA among other documents up to a year after the termination of an H-1B employee. Since the LCA tracks wage levels for the H-1B employee, failure to comply with requests for documentation could result in an order to the employer to produce back wages for the terminated employee.
As ICE becomes more and more involved in the H-1B worksite inspection, it is imperative that employers protect themselves from the hefty fines associated with document retention. Federal investigations are sometimes prompted by anonymous complaints filed by disgruntled employees. If your company fails to retain documents related to terminated employees, you could be faced with debarment from certain visa programs and thousands of dollars’ worth of fines.
In the past few weeks, two memorandum out of the United States Customs and Immigration Service (USCIS) have upturned years of immigration procedures. In the first memo, USCIS announced a new direction to encourage USCIS officers to freely issue notices to appear (NTA), notably for cases in which a visa application is denied. In a separate memo, USCIS announced new measures to cut down on visa processing time, however with unorthodox methods. Starting September 11th, USCIS officers may automatically deny applications that have insufficient evidence without issuing a notice of intent to deny (NOID) or request for evidence (RFE). Together, these two memos mark what could be the biggest threat to legal immigration yet.
Threats to H-1B
As previously reported, increased scrutiny against H-1B visa applications spurred an unprecedented upsurge in RFE notices in 2017. Although RFE were not uncommon for H-1B applications, given the bulk of information required to prove both the qualifications of the employee and the employers need for the specialty hire, the upsurge was far from usual. With so many H-1B visas pending, there was an enormous backlog of H-1B applications. The memo release on July 13thwould cut down on issuance of RFEs and would instead automatically deny insufficient H-1B applications. Although the recent USCIS change aims to cut down on backlogs in visa application processing, the memo may spell a wave of unprecedented deportations.
Separately, the two above mentioned USCIS memos present only extreme inconveniences to visa applicants and employers. Together, these policies spell trouble for H-1B visa holders and all foreign nationals wishing to live and work in the United States. Under the new policies, H-1B applications, which are often delayed due to RFE’s, could be automatically denied for insufficient evidence, without notice to the employee or employer. Following denial from USCIS, even in circumstances in which the applications fell short due to clerical errors, these employees could receive a NTA and face deportation. Although extreme, these policies would allow a legal non-immigrant worker living in the United States awaiting their visa renewal to go from working in the United States to being sentenced to immediately depart the country.
Although the memo aimed to reduce the number of NOIDs and RFEs sent to visa applicants has yet to go into effect, the impact of the recent changes to USCIS procedures is likely to affect thousands. Combined, these two memos may spell catastrophe for legal immigration in the United States.
For many years, USCIS adjudicators have provided applicants & petitioners with the benefit of the doubt. As such, applications, petitions, and requests were not outright denied if a USCIS officer noticed an absence of evidence or if evidence was insufficient for eligibility. For years, USCIS officers instead issued requests for evidence notices (RFE) or a Notice of Intent to Deny (NOID) to those who submitted insufficient applications. During this time, USCIS officers denied only applications in which there was “no possibility” of acceptance. However, a recent memo from USCIS may bring about unfortunate changes in the ways that officers process visa applications.
Early this month, USCIS released a policy memorandum providing adjudicators with greater autonomy in denying a visa application, petition, or request. The five-year procedural commitment to providing applicants with notice of challenges to their applications will now yield to a much harsher policy. USCIS officers may now deny requests for immigration benefits if they determine that there is insufficient evidence to grant the application. Thus, an application will be solely tied to an adjudicator’s interpretation of “insufficient” starting September 11th. For example, if a waiver is submitted with little supporting evidence, the application will be denied without a RFE or NOID. Additionally, applications which require supplementary material, both official and other, that establish the eligibility of an application will be denied if the required information is not submitted with the application (e.g. The affidavit of support does not accompany the application for permanent residence). Excluded from applications impacted by the memo are those submitted under the Deferred Action for Childhood Arrivals (DACA) program.
In a statement, the Director for USCIS praised the memo as an end to “frivolous filings and skeletal applications used to game the system.” Director Cissna hopes that, by allowing USCIS officers to eliminate frivolous and incomplete filings, the organization will be better equipped to quickly process legitimate applications. However, the memo removes the opportunity to mend legitimate mistakes made to applications. Although the procedural change does not go into effect for another two months, the decision is sure to impact many awaiting a decision from USCIS.
The American Medical Association (AMA), the largest association of physicians in the United States, wrote a public letter to the director of the U.S. Customs and Immigration Service (USCIS) expressing concerns about the prolonged waiting period for H-1B visas. The USCIS move towards increased investigation of prevailing wages in the last few months created an enormous backlog of H-1B visa applications. With unyielding start dates for U.S. Graduate Medical Education (GME) programs, many teaching hospitals may experience shortages of medical residents due to the continued backlog.
Effect on the Medical Community
Although the increase to waiting periods spurred by the Trump Administration is nothing new, the impact of increased waiting periods have begun to emerge. Among some of the most impacted employers are teaching hospitals, many of which depend on medical residents for everyday functioning. Each year on or before the first of July, the GME training programs (that permit medical residents to work and learn within a teach hospital) begin. In the letter, the CEO of the AMA, James L. Madara, MD, reminds Director Cissna that delays to H-1B processing for international medical residents significantly impacts critical medical programs. Noting that these “teaching hospitals rely on these medical residents to provide care to many of our nation’s most vulnerable patients.” Supporting this claim, the letter notes that international medical graduates tend to work in some of the more underprivileged areas in the country.
Although Dr. Madara presents a compelling argument for the benefits of international medical residents, the letter focuses on one primary complaint: prevailing wage processing. In order to file the H-1B, the employer has to first obtain prevailing wages from the Department of Labor (DOL). Although DOL provides wage information for many occupations, including physicians, it does not for medical residents. H-1B visa applicants pursuing medical residencies, deprived of information from the DOL, has in the past instead utilized the Association of American Medical Colleges (AAMC) Survey of Resident/ Fellow Stipends and Benefits Report to determine the prevailing wage for similarly situated non-international medical residents. However, these applicants have either been met with requests for additional evidence or outright denied their H-1B visa. In the letter, Dr. Madara notes that the DOL had previously accepted the use of AAMC data for the purpose of determining prevailing wages.