August 23, 2018: U.S. Citizenship and Immigration Services (USCIS), which is a part of the U.S. Department of Homeland Security (DHS), recently announced two very significant policy changes affecting the way it will adjudicate petitions and applications, including those for employment-based classifications sponsored by NC State.

1. Effective September 11, 2018, USCIS officers can deny any application or petition without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if they feel that the original submission lacks sufficient initial evidence to establish eligibility for the status being requested. This new policy guidance will apply to all petitions and applications received by USCIS after September 11, 2018. It is not clear how immigration officers will interpret this new policy, but given that the volume of RFEs has risen significantly since early 2016, the immigration community is anticipating that instead of a higher level of RFEs, employers (and foreign nationals) will begin to receive more denials instead of RFEs.
2. At the same time, USCIS has also decided that it will issue more Notices of Intent to Appear (NTAs), which is a document given to a foreign national requiring him/her to appear before an immigration judge on a certain date to determine whether he/she should be removed from the U.S. (deported), or whether he/she is entitled to legal relief that will allow him/her to stay in the U.S.

When combined, these two enforcement initiatives mean that USCIS has the potential to not only issue more outright denials than in recent history, but to also greatly increase additional negative consequences after a petition or application has been denied. USCIS will be able to more quickly deny petitions and applications, and then start initiating removal proceedings against those whose petition or application for an immigration benefit – such as an extension of H-1B status or an application for adjustment of status (I-485) – is denied and whose underlying status (I-94) has already expired while the extension petition or application was pending. If the underlying status has expired, then as of the date of receipt of the denial decision, any day that person remains in the U.S., for any reason, after that date will be counted as a day of unlawful presence.

If you are an employee of NC State and have any questions about this information, please contact International Employment.