New USCIS Policy Memo and Efforts to Combat Fraud in the H-1B Visa Program

Starting October 1, 2018, the United States Citizenship and Immigration Services (USCIS) will begin implementing its June 28, 2018 policy memorandum¹ to prioritize the removal of foreign nationals from the United States on the basis of public safety, in compliance with Executive Order 13768.²  Under this policy memorandum, the USCIS will issue Notices to Appear (NTAs) to a wider class of foreign nationals who are removable when there is evidence of fraud, criminal activity, or when the foreign national is denied an immigration benefit and is unlawfully present in the United States.

USCIS has confirmed that the June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. However, it is important for employers to note that USCIS still could issue additional guidance on how employment-based petitions should be handled in the future.

A Notice to Appear is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings. Typically, NTAs are issued when the foreign national is a national security concern or when an NTA is required by statute or regulation.  Starting October 1, USCIS may issue NTAs on denied status-impacting applications, including, but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status. As the USCIS noted:

USCIS will send denial letters for status-impacting applications that ensures [sic] benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.³

This memo is just another of many immigration changes USCIS has been implementing in recent months. In addition to the Trump administration’s Buy American, Hire American Executive Order, USCIS has also begun implementing its “Combating Fraud and Abuse in the H-1B Visa Program” initiative, requesting that anyone with information in connection with “suspected H-1B fraud or abuse” contact USCIS through a special email address set up just for the initiative. USCIS indicates that individuals are encouraged to report allegations of employer fraud and abuse to the Department of Labor’s (DOL) Wage and Hour Division and to the U.S. Immigration and Customs Enforcement (ICE). In addition to encouraging reports of suspected fraud or abuse, USCIS has also announced an increase in employer site visits. USCIS will focus on:

• H-1B-dependent employers (those having a high ratio of H-1B workers compared to U.S. workers, as defined by statute);
• Cases in which it cannot validate the employer’s basic business information through commercially available data; and
• Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Employers that may become subject to any of the above or that have questions regarding how any of this may impact existing or potential workforce are encouraged to contact counsel.