Updated July 31, 2018: The USCIS has announced that implementation of the Policy Memorandum will be postponed until after operational guidance is issued. 

Earlier this month, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum providing guidance on Executive Order 13768, which called for enhancing public safety in the United States through immigration policies.  The executive order prioritizes the removal of foreign nationals from the United States on the basis of public safety.

Foreign nationals typically receive a Notice to Appear (NTA) document, which requires the foreign national to appear before an immigration judge on a certain date to determine the foreign national’s status in the United States, and is the beginning of deportation proceedings.  Typically, NTAs are issued when the foreign national is a national security concern or when an NTA is required by statute or regulation.  Under the new USCIS guidance, NTAs will be issued 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.

Employers that utilize the specialty occupation visa, H-1B, must be on notice regarding this new guidance.  If foreign nationals on H-1B visas have their H-1B extension denied or their H-1B visas expire while USCIS reviews the application, they will be issued an NTA and placed in removal proceedings.  Many employers also employ students on F-1 visas to provide students on-the-job training.  Under the new guidance, these students will be issued an NTA and placed in removal proceedings if the student falls out of status while awaiting an extension or change of status approval, and will be subject to deportation.  Prior to this Policy Memorandum, foreign nationals whose visa benefits were unexpectedly denied were simply advised to voluntarily leave the country.  Now, these denials result in the commencement of formal removal (deportation) proceedings.  If foreign nationals leave the United States voluntarily after receiving an NTA without appearing before the immigration judge, their case may be adjudicated in absentia, which may limit their ability to apply for visas in the future.

Maintaining lawful status for foreign national employees has always been a priority for U.S.-based employers, but this new guidance heightens the risk of removal for foreign nationals who do not maintain lawful status.  Immigration specialists and human resources teams should carefully audit the visa statuses of their foreign national employees and ensure that careful reviews are submitted to USCIS to mitigate the removal risk of their foreign national employees.  Littler’s Global Mobility & Immigration team will continue to monitor this issue and report on any notable steps the administration takes to implement this new policy.