USCIS Delays Implementation of NTA Policy Memo

USCIS has announced that the Policy Memorandum (PM) titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens”  which directs USCIS to issue Notices to Appear (NTAs) when denying certain applications for benefits has been temporarily suspended in order to allow for the issuance of operational guidance regarding implementation of the new policy.

USCIS did not provide a timeline for when the NTA Issuance policy will ultimately become effective and D&S will continue to monitor this situation closely.

UPDATE: On September 26, 2018 USCIS announced that it would be rolling out implementation of the NTA Policy Memo starting on October 1, 2018, after which time 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.

USCIS has indicated that it will send denial letters for status-impacting applications that ensures applicants are given adequate notice when an application for a benefit is being denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS has stated that it may issue an NTA.

USCIS has further stated that the NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.

USCIS Grants Adjudicators Full Discretion to Deny Filings Without Issuing a Request for Evidence

Today, Friday, June 13, 2018 U.S. Citizenship and Immigration Services (USCIS) posted a policy memorandum (PM) that provides USCIS adjudicators full discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility.

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USCIS Policy Memo on Accrual of Unlawful Presence and F, J and M Nonimmigrants

On May 11, 2018, United States Citizenship and Immigration Service (USCIS) posted a draft policy memorandum announcing a change in policy regarding the accrual of Unlawful Presence by Nonimmigrant Students and Exchange Visitors.

The policy seeks to change how USCIS will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status (including F-2, J-2, or M-2 dependents) who fail to maintain their status in the United States.

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USCIS Issues Memo Updating Policy on Multiple H-1B Cap Filings for Same Individual

USCIS recently issued a Policy Memorandum adopting Matter of S- Inc., a decision issued by the Administrative Appeals Office (AAO) regarding the prohibition on “related entities” filing multiple cap-subject H-1B petitions for the same H-1B beneficiary in an effort to increase chances of acceptance into the H-1B lottery.  USCIS’s adoption of this decision establishes policy guidance that applies to and guides USCIS visa adjudications, and the Memo directs USCIS personnel are to follow the reasoning in this decision in similar cases.

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USCIS Issues New Policy Memo on Third Party Placement for H-1B Petitioners

This week the United States Citizenship and Immigration Service (USCIS) issued a new Policy Memorandum (PM) titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” which increases the amount and type of documentation that must be submitted in support of H-1B petitions involving third-party worksite placement (H-1B petitions in which the the H-1B beneficiary will be employed at the worksite of a third-party client).  Common examples of such placements include consultants placed at a client site in order to provide consulting services, certain staffing agencies/IT service vendors, and some subcontractor arrangements.

The PM supersedes prior policy memoranda on this issue and clarifies and consolidates the documentary requirements for H-1B petitioners submitting petitions for third-party placement. The PM makes clear that such petitions must include additional documentation, namely contracts and itineraries, showing that the beneficiary will be employed in a specialty occupation and that the petitioner will maintain an employer-employee relationship with the beneficiary throughout the requested petition validity period.

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USCIS Issues Policy Memorandum Rescinding Prior Guidance Directing That Deference Be Given To Prior Visa Approvals

This week United States Citizenship and Immigration Service (USCIS) issued a Policy Memorandum titled “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” which rescinds prior USCIS policy guidance permitting USCIS adjudicators to give deference to certain previously approved nonimmigrant visa petitions where the material facts underlying the petition remained unchanged. This policy had been in place since 2004 and was reaffirmed by USCIS in 2015.

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