The H-1B Catch 22 – USCIS “Memoranda” on No RFEs and NTAs

USCIS issued two recent policy memos dated June 28th (implementation of this memo has since been postponed) and July 13th (goes into effect September 11, 2018) that have created widespread confusion and panic among H-1B nonimmigrants. Both memos, while not addressing H-1B situations directly, allude to the USCIS’ ability to a) issue denials without having to first issue a request for evidence (RFE) and b) refer denials to Immigration and Customs Enforcement (ICE) for additional processing (NTA/deportation proceedings).

This sudden penchant for revised policy “memoranda” appears rooted in one or the other presidential executive order. I couldn’t help looking at this spate of memos and be reminded of General Peckem from Joseph Heller’s Catch 22:

“It was not true that he wrote memorandums praising himself and recommending that his authority be enhanced to include all combat operations; he wrote memoranda. And the prose in the memoranda of other officers was always turgid, stilted, or ambiguous. The errors of others were inevitably deplorable. Regulations were stringent, and his data never was obtained from a reliable source, but always were obtained. General Peckem was frequently constrained. Things were often incumbent upon him, and he frequently acted with greatest reluctance. It never escaped his memory that neither black nor white was a color, and he never used verbal when he meant oral.”

Levity aside, let us take each of these memos and see how it is likely to impact H-1B nonimmigrants.

  • June 28th Memo – Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens:

 

The implementation of this memo has been temporarily postponed. However, it has already garnered widespread media attention. At the outset, this memo greatly expands the role of the USCIS in issuing NTAs. An NTA (Form I-862) is a mechanism by which the federal government (DHS) initiates the process of removing a noncitizen from the U.S.  Once issued, the NTA forces the individual to appear before an immigration judge and be subject to immigration proceedings[1]. The Memo greatly expands the role of the USCIS (from a benefits adjudication agency to co-enforcement) in the issuance of the NTA and dictates their issuance in certain situations.

 

Specifically, the context in which H-1B nonimmigrants are discussed is in paragraph V, on page 7 under the heading: Aliens Not Lawfully Present in the United States or Subject to Other Grounds of  Removability. The seemingly innocuous paragraph reads:

 

USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States. For aliens removable under any other grounds not specifically addressed in this PM, USCIS will ensure all grounds for removability supported by the record are addressed and result in the issuance of an NTA, whenever appropriate.

An “unfavorable decision” in the H-1B context is the denial of a petition filed to extend the H-1B status of the individual. Unfortunately, the denial of an H-1B is rarely, if ever, the “end of the road” for an employee. The petitioner has motion rights (pursuant to 8 CFR §103.5) and the ability to file an Appeal with the Administrative Appeals Office. The Memo goes on to state on page 10 that the USCIS will preserve the petitioner’s ability to seek “administrative review” and will “continue to conduct its administrative review during the course of removal proceedings.” However, the memo does not mandate the sharing of the administrative review record(s) with ICE, nor does it require the USCIS to immediately notify ICE in the event of a favorable decision. This is rather troubling because, as a practitioner, I am very familiar with USCIS service centers not being in synch with each other’s processing, let alone communicating their decisions to an outside agency.

Without going into an extended decision of NTAs (See excellent practice pointer on the subject), it is important to understand that this memo is likely to seriously impact H-1B nonimmigrants.

There are legitimate ways to stay on the right side of this memo. The following may be options:

  • Leave the country prior to NTA issuance (within 10, but no more than 30 days after an adverse decision – provided the USCIS internal guidance provides that period for Motions)
  • Refile H-1B petition seeking consular notification. This does not take away the ability of the petitioner to file an MTR or pursue other appeals
  • Seek premium processing (caution: there has been a dramatic increase in RFEs and potential denials based on the July 13th memo emanating from the PPU), or file immediately upon reaching the 6 months threshold for extensions
  • Provide a Consular Notification option when filing H-1B extensions where it is unclear whether the employee is entitled to the benefit being sought (for e.g., employer failed to file an amended petition)
  • July 13th Memo – Issuance of Certain RFEs and NOIDs:

This memo is meant to replace guidance that was issued previously. However, it is important to note that USCIS officers always had the right to deny H-1B petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) – this authority is part of 8 CFR § 103.2(b)(8)(ii) and states:

“if all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS.” Emphasis supplied.

However, a June 3, 2013 Memo required that USCIS adjudicators always issue an RFE unless there was “no possibility” that the deficiency could be cured by submission of additional evidence. The USCIS now believes that this no possibility standard is restrictive and should be changed. I don’t see this as a dramatic difference in what has always been the prerogative of the Service – denying petitions that lacked merit and approvability as filed.

The memo also clearly tries to highlight the reason for the policy change. It states on Page 2:

Consistent with USCIS practice and regulations, adjudicators will continue issuing statutory denials, when appropriate, without issuing an RFE or a NOID first.  This would include any filing in which the applicant, petitioner, or requestor has no legal basis for the benefit/request sought, or submits a request for a benefit or relief under a program that has been terminated.

In most situations, H-1Bs are filed for legitimate reasons (under a program that continues to exist) and nonimmigrants have a legal basis for the benefit being sought. Therefore, it would be highly unusual to use this memo to reject an H-1B filing outright.

However, this change in policy is worrisome when considered along with the June 28th memo (discussed earlier) establishing USCIS’ ability to issue NTAs upon issuance of an unfavorable decision.

It is important therefore to present H-1B cases that cannot be rejected/denied due to a lack of initial evidence or for ineligibility. A thoroughly prepared petition with extensive documentation would allow most petitioners to overcome the harmful impact of this memo.

[1] And be subject to endless wait times given court backlogs.

2018-08-09T14:32:56+00:00 Aug 9, 2018|