USCIS recent policy changes, Part 1: USCIS extends premium processing suspension, reverses course on NTA issuance, and announces new RFE policy

By Karlie Dunsky and Tejas Shah - Franczek Radelet P.C.

August 29, 2018

On Tuesday, August 28, USCIS announced a broader suspension of premium processing for H-1B petitions filed by employers. This post describes this suspension and its significant implications, particularly in light of two other recent policy changes:

• A new Request for Evidence/Notice of Intent to Deny (RFE/NOID) policy
• A new Notice to Appear (NTA) policy

Background on Premium Processing suspension

On Tuesday, August 28, USCIS announced that it is extending the suspension of premium processing on H-1B cases subject to the annual cap and expanding its suspension of premium processing services to all other H-1B categories, except for (i) petitions requesting extensions of status without change in employment at the Nebraska Service Center and (ii) petitions filed by cap-exempt employers. The suspension of premium processing for the expanded H-1B categories becomes effective on September 11, 2018, and is expected to remain in force until at least February 19, 2019, although the return of the service is not guaranteed. Cases filed with a request for premium processing before September 11 will still remain eligible for expedited processing, even if a decision has not been rendered by that date. Cases filed on or after September 11 may only be eligible for expedited processing with special USCIS permission.

Premium processing was suspended earlier this year for H-1B petitions subject to this year’s cap/lottery, with the prediction that the service would likely be made available again in early September. Given this announced change, restoration of premium processing has been postponed for several more months.

Background on NTA policy issuance

In June, USCIS issued a policy memorandum (found here) that authorized and directed the agency to issue Notices to Appear (NTA), effectively initiating removal proceedings against an individual where the denial of a petition with USCIS results in the individual falling out of lawful status. This policy would result in the issuance of a NTA in many common scenarios, such as but not limited to the denial of an extension request where the initial status has expired (a scenario that is more likely under current USCIS policy) and an H-1B transfer/portability request where the beneficiary begins working for the new employer based upon the pending filing. The policy was to become effective in September.

The initiation of removal proceedings against an individual in such circumstances would result in the employee then becoming unable to depart the U.S. without triggering an automatic removal order. Instead, the person would be effectively stuck in the court system, while accruing unlawful presence, and would both become unable to leave the U.S. or to stay and work lawfully. The announcement of this new policy resulted in a mini-panic. Most recently, the USCIS temporarily postponed the implementation of this policy due to a lack of operational guidance.  No specific date has been provided for the policy’s implementation.

Background on RFE/NOID policy

In June, USCIS also issued a policy memorandum (found here) directing its adjudicators to deny petitions in their discretion without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) where required initial evidence was not submitted with the petition or where the evidence fails to establish eligibility for the benefit requested. This guidance is to become effective as of September 11, 2018 and will apply to all applications filed with USCIS, except those for Deferred Action for Childhood Arrivals (DACA) filed after that date (a limitation resulting from ongoing federal litigation regarding DACA in the California and New York courts).

The policy change, said USCIS Director L. Francis Cissna, is to deter “frivolous filings … used to game the system” and conserve agency resources. See USCIS announcement. USCIS has cited waiver applications with little to no evidence and adjustment of status petitions filed without an affidavit of support where one is required as examples of situations where it is appropriate under this new policy to deny without first issuing an RFE/NOID. It remains to be seen how expansively this policy will be applied. The agency has not provided any support for its position that frivolous applications are currently being filed, or indicated how this new policy would result in other cost savings to the agency. Of note, USCIS is fully funded by the fees paid by applicants, and every application filed with USCIS typically includes a filing fee, unless the applicant qualifies for a fee waiver.

Insights:

Collectively, these changes are inhibiting the mobility of many foreign workers and creating a greater sense of panic. This will dramatically impact the ability of employers to change the terms of an H-1B worker’s employment through an amendment or initiate the employment of a H-1B worker hired from a different employer. The overall unpredictability in decision making, changes to the RFE policy, and ongoing concern about the NTA policy have made more H-1B workers hesitant to change jobs absent a petition’s approval, even though the law permits them to start their employment upon USCIS’s acceptance of the petition for processing. With the impending suspension of premium processing, employers are likely to face more challenges in the mobility process.

This change will also impact employers’ ability to hire workers currently in non-work authorized statuses, as a change-of-status petition is not effective until it is approved. For example, a worker in a non-work-authorized derivative family member status, such as H-4, who is being sponsored for H-1B status will need to wait until that petition’s approval—which now may take 5-6 months to review—before beginning work.

The extension of premium processing suspension also has significant implications for individuals working in the cap-gap period. This refers specifically to individuals whose OPT authorization has expired but has been extended by regulation until September 31, since the effective start date for such petitions is October 1. The absence of a tool for ensuring that a decision is rendered on or before September 31 could result in certain employers being unable to continue the employment of certain students sponsored for H-1B status beyond October 1 until the application has been approved.