On July 13, 2018, the Department of Homeland Security (DHS) released a policy memorandum, in which they announce an updated guidance to U.S. Citizenship and Immigration Services (USCIS) regarding their authority to deny a visa application, request or petition. The memorandum states that USCIS will now be guided to complete this process without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if the evidence in the record does not prove eligibility to the first adjudicator conducting the initial review of the case.
This updated guidance will go into effect on September 11, 2018.
This memo completely overturns the Policy Memorandum from June 3, 2013: “Requests for Evidence Notices of Intent to Deny,” under which USCIS was guided to issue requests for additional or clarifying evidence if a case was not entirely clear upon initial review. This previous guidance gave employers an opportunity to prove eligibility if the evidence originally submitted did not suffice. The 2013 guidance was issued because in many employment based cases the initial evidence submitted is often sufficient, but adjudicators do not initially realize this because either they may not be familiar with the specific industry, or they may not understand the complex corporate structure of the petitioning employer company.
Application of the New Guidance:
This new memorandum will be used to guide all decisions made by USCIS decision makers regarding applications, petitions, and requests filed on September 11, 2018 and thereafter.
Why should U.S. Employers Care?
This new memo is not good news for U.S. employers who are facing labor shortages and need to secure visas, such as H1-B, to fill high-skill positions.
Under the updated guidance (Page 7, Part V) beneficiaries who must renew their status could be immediately placed in removal proceedings without consideration, making it extremely difficult for these employers to retain the workforce they need.
What should US Employers do about the New Guidance?
U.S. employers should not give up, but rather fight this type of guidance through legal avenues. First, if the employer has not filed its case yet, it is time to re-evaluate the entire filing to include as much evidence as possible, even if it seems like “overkill.” Over-documenting cases should become the new norm. If a case has already been submitted, it might be a good idea to contact the immigration lawyer to see if the filing can be amended to include additional evidence. If the employer receives a denial, this is not the time to give up. The only way to change bad policy is to appeal every wrongful denial until the policy is re-evaluated and changed.
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.