Earlier this summer, US Citizenship and Immigration Services (USCIS) published new guidance for how their officers should handle what we call a "Notice to Appear" (NTA). An NTA is essentially notification to a foreign national in the US that the government feels he or she is "removable" (deportable), and that their name and file has been referred to the immigration courts for a removal hearing before a judge.
Past Practice
Historically, NTAs have been fairly uncommon in the business, sports and entertainment immigration world. In the rare instances where a foreign worker, athlete, or entertainer has fallen out of status in the US, it is usually due to a technical violation of the terms of their stay, often completely unbeknownst to the individual. For most of those people, there has been a relatively straightforward way to correct whatever minor status violation occurred, and then to "reset" their lawful status and work authorization in the US, without any long-term harm or impact to the foreign national. Not anymore.
New Policy
Under the terms of this new policy, USCIS officers will now be required to issue an NTA to every person who is "not lawfully present" in the US at the time that any application, petition, or request for an immigration benefit is denied, regardless of the reason. If implemented as written, this will have a direct impact on unsuspecting employers, employees, and performers, including those who have been legally working or performing in the US for many years. Here's how.
Take the common example of an H-1B, O-1, or P-1 temporary worker who has been maintaining their status in the US. In-country extensions of their status and work authorization are routine; and, temporary staffing needs or event/performance schedule changes are extended frequently. Employer/Agent petitions to the USCIS to request an extension can usually be filed up to 180 days in advance of the upcoming expiration. The USCIS often takes longer than that to finish their review of the extension request, but there is an old regulation which allows the individual to continue living and working in the US for up to an additional 240 days, while waiting on the USCIS' decision.
Again, historically, if the USCIS sought to deny the extension request, the sponsoring employer/agent or individual could provide additional supporting evidence for the benefit sought; sometimes, the extension petition could simply be refiled, if there was a clearly erroneous denial by the USCIS officer (an all-too-common occurrence). The individual may have been forced to depart the US and return home temporarily, but ultimately would reenter the US and resume their employment upon final USCIS approval.
However, if the USCIS now issues an NTA in the above scenario, the individual and sponsor will be immediately precluded from clarifying any confusion with their original filing, or from re-filing to correct an officer error. Instead, the individual will be placed into a long and convoluted immigration court removal proceeding. While they await a resolution from an already overwhelmed immigration court system, they will lose their underlying work authorization, and will also be unable to simply depart the US to wait back in their home country. Departure before an immigration judge's order triggers a 5-year bar to reentry (even if/when the USCIS ultimately approves the employer's extension request).
Consequences for Employers, Athletes, Artists, and Entertainers
Sponsors, including professional sports leagues, major record labels, motion picture or television industry companies, gaming companies, studios, galleries and others in the athletic, arts and entertainment world are trapped in this conundrum and will lose valuable talent and support personnel who have been lawfully working in the industry, often for years, and in whom the business has invested significant resources, including paying for multiple, successful extensions in the past. Athletes, artists and entertainers will risk disruption to their athletic or performance schedules, cancellation of events, loss of associated revenue, and possible contractual violations with venues (if those contracts exist). The only option for most employers and the foreign national will likely be to pay a hefty, additional filing fee to the USCIS for expedited ("premium") processing, to ensure that any arguments from the government (well-founded or not) can be resolved before the underlying status expires. Alternatively, individuals could choose to fly outside of the US before their underlying status expires, whenever USCIS processing backlogs delay extension approval beyond their expiration; also a costly prospect for everyone involved and disruption to work schedules. It will become very important for all parties involved to plan ahead and file extension petitions early in order to minimize disruption to employment while in the US.
Conclusion
This is but one of many examples of unintended consequences of this new NTA policy on employers of lawful foreign workers currently in the US. Stay tuned for even more detail and legal analysis on this topic soon from the DW Immigration Group.
UPDATE: The USCIS just announced a temporary delay in implementation of the new NTA policy, while they update specific, "operational guidance" instructions to officers throughout the US. However, it appears likely that the new policy will go into effect immediately after that guidance is issued.
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