Deportation Referral Policy Could Be Employers’ 'Final Straw’

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By Laura D. Francis

A new U.S. Citizenship and Immigration Services policy allowing the agency to refer foreign workers for removal proceedings in immigration court could make businesses think twice about sponsoring workers for visas.

“I think this could be the final straw,” American Immigration Lawyers Association President Anastasia Tonello told Bloomberg Law July 9. With the new policy adding to existing hurdles employers must overcome to sponsor a foreign worker for a visa in the U.S., they may just jump ship and move operations overseas, she said.

“This could really disrupt businesses and discourage businesses from sponsoring employees,” Tonello said.

The new policy, released July 5, allows the USCIS to issue “notices to appear,” or NTAs, for removal proceedings in immigration court. In addition to instances of crime and fraud, the agency also will do so when the foreign national “is not lawfully present in the United States” after a petition or application is denied.

“The adjudicators of the applications are now the enforcers of the law,” Matthew Kolken of Kolken & Kolken in Buffalo, N.Y., said July 9. Immigration and Customs Enforcement, not the USCIS, has traditionally handled enforcement, he told Bloomberg Law.

With the likelihood of removal increasing “exponentially” if a visa petition isn’t properly “squared away,” employers that spend a great deal of time and money sponsoring a worker for a visa could see that worker removed from the U.S. with few options, if any, for coming back, he said.

A representative for the USCIS didn’t immediately respond to Bloomberg Law’s request for comment.

‘Very Fresh’

“This is all very fresh and we don’t know how it’s going to play out,” Kolken said.

Just because the USCIS has given itself the authority to issue NTAs doesn’t necessarily mean that it will in all cases, he said. It’s more likely that the agency will issue an NTA for fraud than a simple finding that an immigrant doesn’t qualify for a visa, he said.

But timing is likely going to be a big issue in light of USCIS processing delays, Tonello said. That’s a particular concern for companies that sponsor L-1 workers for green cards, she said.

The temporary visas go to certain workers who transfer to the U.S. from a company’s overseas branch or affiliate. They’re limited to a maximum of five or seven years, depending on the type of worker.

The USCIS is taking one to two years to even look at the green card petitions and then is delaying them further by demanding additional information proving that the worker qualifies, said Tonello, who practices with Laura Devine Attorneys in New York.

If the petition ultimately is denied, it’s possible that the worker has maxed out on his or her L visa and would be considered eligible for an NTA under the new policy, she said.

Issue for Green Card Backlog

The relative lack of green card availability is “where this could become problematic,” Kolken said.

For example, workers on H-1B skilled guestworker visas can keep extending their visas if they’ve been approved for an employment-based green card but are stuck in the backlog.

If “all of a sudden USCIS denies an extension of their H-1B and institutes removal proceedings against them,” the worker no longer can apply for a green card or another visa from within the U.S., Kolken said. And if the worker remains unlawfully present in the U.S. for a year, he or she can’t get another visa—even outside the U.S.—for 10 years, he said.

“The underlying adjudications are so unpredictable now,” Tonello said. Employment visa petitions “that were, and still are, clearly approvable are not getting clearly approved,” she said.

Employers can appeal USCIS decisions they feel were mistaken, Kolken said. But what happens to the worker in the meantime depends on the relative speed of the administrative appeals process versus the removal proceedings, he said.

There’s currently a backlog of close to three-quarters of a million cases in the immigration courts, and so it could be one or two years—or more—before an immigrant’s court date comes up, Kolken said. If the USCIS’ denial of the petition gets overturned before then, the immigration judge may decide to terminate the removal proceedings, he said.

But if the immigration court date comes up before the petition denial appeal is decided, it’s unclear whether an immigration judge would be willing or even able to stall those proceedings pending the appeal, he said.

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