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Immigration Policy Changes Create New Challenges for Employers

by Carmen Arce on Categories: immigration policy changes

Immigration Policy Changes Create New Challenges for Employers

While the plight of immigrant families separated at the U.S. border has drawn national attention, other policy changes by the U.S. Citizenship and Immigration Services (USCIS) have had a significant impact on South Florida employers. Many immigration attorneys are referring to these changes as “The Invisible Wall” or “The Other Travel Ban.”

For example, many multinational executives and professionals travel to foreign countries on a regular basis for business purposes. In the past, foreign workers with an H-1B or L-1A business visa could file for residency (a “green card”) and be allowed to continue traveling during the application process because both case types allow for dual intent.

However, last year USCIS made a policy change, and holders of H1B and L1A visas along with Adjustment Applicants with current Advance Paroles (also known as travel permits) must now be more cautious than ever as to whether or not they are allowed to travel and until when.

If they file for an Advance Parole or a Renewal of an Advance Parole and depart the U.S. prior to the approval of such document, it will be deemed abandoned and could result in the person being stuck outside of the U.S. until the issue can be resolved, which could take months.    

Therefore, South Florida visa and green card holders should consult with an immigration attorney before traveling to a foreign destination to be sure they will be allowed back into the United States.

Recently, USCIS issued two important policy memos that will make it more difficult for employers to obtain H-1B visas for executives, professionals or other foreign workers.

A June memorandum made it easier for USCIS officials to issue a notice to appear (NTA) before an immigration judge to visa applicants, in order to begin removal proceedings in a wider range of cases. For instance, deportation proceedings could begin against an H-1B worker even though the individual was challenging the denial.

Under a July 13 guidance, which takes effect September 11, USCIS officers can deny an application without having to issue a request for evidence (RFE) or a notice of intent to deny (NOID). That empowers USCIS officers to reject an application without providing opportunity for the individual to correct a flaw in the initial form or submit additional supporting documents. In the past, USCIS could deny these cases only when there was no possibility that any errors could be corrected.

It’s also important to understand that it can take USCIS a year or longer to change an individual’s visa status. So, careful advance planning is needed for both nonimmigrant visa applicants as well as employment-based immigrant visa applicants to avoid being placed into removal proceedings while their cases are still pending.

Another USCIS policy change has affected South Florida students and their families. In the past a B1/B2 tourist who was within the U.S. (generally for a six month period), decided she wanted to study, and was accepted by a school authorized to issue an i-20 (certificate of eligibility for nonimmigrant student status), then she would file a Change of Status and would need to prove she had the financial means to support herself throughout her studies without the need to work in the U.S.

In April and May of 2017, USCIS changed the rules about filing for this change of status and applied the change retroactively. As a result, a number of foreign students had to leave the U.S., with a resulting impact on South Florida colleges and universities. It was a situation that could have been avoided by giving the students and their academic institutions, along with the legal community a few months warning in order to adjust to the new rules.

At a time when the U.S. is facing a nationwide shortage of skilled labor, these USCIS rule changes are making it more difficult to recruit and retain foreign workers. Many talented multinational executives and professionals are likely to consider taking positions in other countries, rather than deal with the constantly changing U.S. immigration policy requirements.                                                                           

Carmen Arce is a board-certified immigration attorney at Arce Immigration Law, P.A. in Miami.

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