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Physician Immigration Issues by Elissa J. Taub

The United States' immigration system long has needed reform on a variety of fronts. From the challenges facing those in the country without documentation to the need for fairer asylum laws to often inefficient processing of employment-based immigration benefits, the immigration system is one that is crying out for common sense solutions. Sadly, no immigration legislation has passed both houses of Congress since 2005, and the likelihood of comprehensive immigration reform legislation is unclear.

In the absence of legislation, USCIS has filled the void with far-reaching policy changes. For physicians, several new government policies both proposed and already implemented can cause serious consequences and derail genuine attempts to immigrate lawfully to the United States. Because these changes largely are policy-based, meaning that the government decided to apply the law differently than it had before, and were not created by regulation or legislation, they have escaped close public scrutiny so that many affected individuals do not know about them or at least do not understand their possible effects.

The government's policy changes largely are justified as implementing the Buy American, Hire American (BAHA) Executive Order, that President Trump signed on April 18, 2017. BAHA directs all federal agencies that deal with immigration matters to review all immigration-related policies and regulations and to consider the effect of those rules and policies on American workers.

On October 23, 2017, USCIS rescinded its longstanding memorandum that required agency examiners to give deference to prior decisions or determinations absent fraud or clear error. While as a practical matter, USCIS often claimed that it was not bound by prior decisions, the formal rescission of the deference memorandum means that examiners are required not to defer to prior decisions. This means that all petitions filed with USCIS must stand on their own and should not rely on any prior filings. For example, when an employer petitions to extend the stay of a physician who has been in H–1B status with the same employer for three years, the petition must include all required evidence as if no prior petition ever had been filed. USCIS reserves the right to deny the petition if the current adjudicator believes that the petition does not qualify for approval. The result of rescission of the deference memorandum is greater uncertainty and inconsistency in adjudications and heightened anxiety for all those involved in the process.

In Summer 2018, USCIS issued two additional policy memoranda that caused tremendous anxiety. On June 28, 2018, USCIS issued a memorandum that significantly changes its policy for when to issue a Notice to Appear (NTA) when the denial of a petition or application leaves an individual without lawful status in the United States. An NTA is the document that formally begins court proceedings to remove or deport a person from the United States. Under the agency's prior policy, USCIS would issue an NTA to institute removal proceedings only where the denial of a petition was due to fraud or abuse. Instead, USCIS left issuance of NTAs to other agencies within the Department of Homeland Security, like Immigration and Customs Enforcement (ICE). Under the new policy, USICS officers are mandated to issue an NTA when the denial of a petition or application leaves an individual without lawful status. USCIS has been implementing the NTA Memo in stages, and so far, it applies only to denied applications, like I–539s and I–485s, but broader implementation is planned. In addition, USICS says the agency will delay issuance of an NTA for enough time for an individual to move to reopen the denied case in case an error was made. But the bottom line is that the consequences of a denial are greater than ever.

The consequences of the NTA Memo make the other policy memorandum from Summer 2018 even harder to swallow. Past USCIS policy required officers to issue a request for evidence (RFE) or notice of intent to deny (NOID) before denying a petition or application to afford the petitioner and beneficiary an opportunity to cure whatever defect(s) the officer found. On July 13, 2018, USCIS issued a policy memorandum that absolves officers of the need to issue an RFE or NOID where a submission lacks "required initial evidence." USCIS's stated goal in issuing the RFE Memo is to dissuade petitioners or applicants from submitting skeletal filings to USCIS merely to obtain an immigration benefit based on the filing. While that goal is reasonable, the fear is that implementation of RFE memorandum will cause an uptick in summary denials of petitions and applications. The RFE memorandum became effective on September 11, 2018, and so far, USCIS still is issuing RFE's, but physicians and employers are strongly advised to provide as much relevant documentation with their submissions as possible to avoid a possible denial for failure to submit required initial evidence.

Another evolving USCIS policy is the availability of premium processing for H–1B petitions. Over the past several years, USCIS has suspended its premium processing service for various categories of H–1B petitions on an intermittent basis, and the suspensions have caused significant changes in H–1B strategy for many cases and disruptions in some individuals' ability to start work on time. Each time USCIS has suspended premium processing, the agency later has resumed the service for discreet classes of H–1B petitions as they become operationally able to do so, but it seems these temporary, limited suspensions are going to become a new normal for H–1B processing for the foreseeable future.

In addition to policy changes that have been created through memoranda, USCIS has been busy on the regulatory front. On the horizon for 2019 and 2020 are proposed changes to the way USCIS administers the H–1B cap, possible rescission of the H–4 EAD program, the introduction of the public charge rule that could change eligibility for permanent residence and changes to the standards for J-1 hardship waivers, among other proposed rule changes.

Finally, the availability of green cards will continue to be an important issue for 2019. While most physicians either are aware of or directly affected by the EB–2 backlog for Indian and Chinese nationals, in 2018, we experienced, for the first time, widespread lengthy backlogs in the EB–1 category. The EB–1 backlog affect not only Indian and Chinese nationals, but also individuals from all over the world who qualify in the category. The US Department of State advised that the EB–1 backlog will continue indefinitely. It is a strange turn of events when the EB–2 category is more attractive than EB–1 for some individuals. By the same token, while the US Department of State's visa bulletin has been moving steadily in the EB–2 category for India and China and while USCIS has allowed filings using the "Filing Dates" on the visa bulletin, no direct relief in sight to eliminate or advance the backlog in any significant way. Hopefully, advocacy efforts in Congress will be successful in securing legislation to rectify the situation.

Physicians participating in graduate medical education in the US who are in J–1, H–1B, O–1 or some other immigration status, should do their best to stay informed about immigration policies and trends that might affect them. Rumors abound, and sometimes physicians make important based on incorrect information or assumptions. It is important to consult a competent immigration attorney and/or be sure prospective employers have access to a competent immigration attorney before making impactful immigration-related decisions.

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Elissa J. Taub has been an attorney at Siskind Susser PC since 2007, where she practices primarily in the area of physician immigration. Elissa Has authored several articles and spoken on panels related to physician and business immigration and is regularly invited by clients to present on immigration matters. Siskind Susser PC is one of the largest immigration law firms in North America. You can reach out to Siskind Susser PC at info@visalaw.com or check out more information here.

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