H-1Bs and H-4 Dependents to be deported if Immigration Status Expires During Renewal Process

A policy memo issued by U.S. Citizenship and Immigration Services subjects H-1B workers and their dependents to deportation proceedings if they fall out of status while their application for renewal is being processed.

USCIS issued the memo — ‘Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens’ — on June 28. A month later, the agency postponed the implementation of the directive, stating that operational guidance was pending; therefore, the directive would be implemented once operational guidance was issued.

A second memo, issued July 13 by USCIS, states that the agency can outright issue a ‘Notice of Intent to Deny’ a petition or renewal without first issuing a Request for Evidence, per the current norm. That policy is slated to take effect this year on Sept. 11. The second memo — ‘Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual’ — clarifies a 2013 policy memo and states that a NOID can be issued without a request for evidence if the adjudicator determines there is little evidence to support the initial application.

Newark, Calif., immigration attorney Kalpana Peddibhotla told India-West it was unclear how the July 13 memo would be interpreted and implemented, and suggested that the effect of the two memos was an intentional strategy by the Trump administration to create a climate of fear.

“There is a chilling effect which may or may not be intentional, or for that matter warranted, with the release of these immigration memos,” said the Indian American lawyer.

In a July 13 press statement announcing the second memo, USCIS director L. Francis Cissna said: “For too long, our immigration system has been bogged down with frivolous or meritless claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits.”

“Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws,” said Cissna.

The July 13 directive is applicable to all immigration-related petitions, except the Deferred Action for Childhood Arrivals program, which was terminated last year but has been kept alive with injunctions issued by district courts in San Francisco and New York.

Stuart Anderson, executive director of the National Foundation for American Policy, told India-West that a dramatic increase in the number of Requests for Evidence for H-1B renewals has led to longer waits for application processing, leading to a larger number of highly-skilled foreign workers and their H-4 dependents who could lose their immigration status.

Anderson noted that USCIS has received a lot of push-back since the June 28 directive was issued; the agency may decide to add a grace period, he said.

Anderson noted that the Trump administration could not terminate the H-1B visa program outright — only Congress can do so — but could, in a back-handed manner, reduce the number of people eligible for the program, and, moreover, discourage highly-skilled foreign workers from applying.

“H-1B workers represent a very low number of employees relative to the overall workforce,” said Anderson, noting that the program only allows 85,000 applications to be accepted per year into a labor pool of more than 160 million employees.

He emphasized that a cap of 85,000 H-1B visas issued per year was far too low, and added that increasing the cap would allow American corporations to create jobs and invest in the U.S. rather than abroad.

NFAP released a report July 25 highlighting the dramatic increase in denials of H-1B applications. The proportion of H-1B petitions denied for foreign-born professionals increased by 41 percent from the 3rd to the 4th quarter of FY 2017, rising from a denial rate of almost 16 percent in the 3rd quarter to 22.4 percent in the 4th quarter.

The report also highlighted the dramatic increase in Requests For Evidence: the RFE rate was approximately 69 percent in the 4th quarter compared to 23 percent in the 3rd quarter of FY 2017.