RFEs & NOIRs Part 1

Corners of the internet are on fire with worry over the new ways that the Trump administration has invented to deny new and existing H-1B visa applications. In this post, part one of our take on the subject, we discuss DHS’ new policy of issuing a new kind of NOIR (Notice Of Intent to Revoke.) This NOIR reaches back to H-1B visas which have been valid for of 3, 4 or 5 years, and invalidates them from the date of issuance.

The development was recently shared on Reddit posts and by Mr. Anil Gupta on his site. In a new post we learn that apparently after critical onsite visits by the Fraud Detection Unit, DHS is now issuing NOIRs which state that because of the employer’s noncompliance the beneficiary’s visa will be deemed invalid from the date it was issued. 

The example in the post talks about an H-1B visa that was originally issued on the petition of an original employer (Employer A) in 2015. The beneficiary subsequently changed jobs in 2017 and successfully transferred their visa to Employer B. Then presently in 2019, the beneficiary got a new job offer from a new employer and tried to transfer the visa to this new Employer C.

The problem arouse because in the meantime DHS’ Fraud Detection Unit had visited original Employer A and had discovered irregularities with that employer’s processes and procedures. Consequently DHS issued a NOIR informing the beneficiary that their H-1B visa was revoked effective 2015. 

The post advises that beneficiaries in this situation will not only be barred from working for new Employer C, but they “cannot even go back to work for employer B in this case” even though Employer B had not made any request to DHS that would require review, adjudication or approval. 

Report of this new policy was cheered by folks who have suspected offsite consulting companies of engaging in widespread fraud and “spoiling” opportunities and wages for all the other workers in the marketplace. 

We have no position on the effectiveness of this policy to combat marketplace fraud. Similarly we take no position, at least for now, on the legality of this new enforcement measure. But we would point out again, as we did here, that the Trump administration’s view of the law and its treatment of foreign tech workers subject to the law is no different from Trump the apartment developer’s views of the law and his treatment of the subcontractors who worked for him. The hundreds of lawsuits that Trump is known to have filed against subcontractors were not motivated by a love of justice or fairness. Trump’s suits were and still are intended to cause delay, to create a war of attrition that Trump calculates Trump can win, regardless of what the law says. 

Our concern here is with the workaround we’ve been promoting and how this new enforcement policy affects it. We have warned everybody who’s so far read about our workaround that nothing is risk free. Of course our subscribers already have a comprehensive list of the risks involved. And if you haven’t yet, you too can become subscriber for the measly sum of $10.00 by clicking here.

DHS’ new NOIR policy has suddenly made the risks associated with the workaround vastly, exponentially, more attractive. We would like to briefly discuss the reasons why DHS’ NOIR is bound to drive more people to use our workaround.

Don’t let the fact that this explanation is both simple and brief fool you. It isn’t any less significant because of its brevity or simplicity. 

Imagine you are a sitting in an office and somebody suddenly opens the door and shouts, “The building is on fire. If you don’t go to the fire escape immediately, you will burn with the building.” Brevity and simplicity don’t make this announcement, nor the risk/reward scenario it entails, any less earth shattering. The same is true of our workaround. 

Until now if you didn’t prepare for a denial you could reasonably expect DHS to at least give you 180 days to leave the country if you visa wasn’t renewed. This 180 day window is critical for those who have other immigration benefits they want to preserve. For example those who have applications for a green card on file could use it to leave the US and presumably preserve the right to come back when their green card application has become current. 

The new DHS NOIR policy completely upends all such risk/reward scenarios. The reason is simple. 

Imagine an H-1B visa holder called X:

  • X has been living and working in the US since 2015 pursuant to a visa that s/he was told and believed was valid.
  • Suddenly DHS informs X that not only his or her visa is no longer valid.
  • In fact it has not been valid since inception or since 2015.

Now note what the law says about staying in the US without authorization. INA sections 212(a)(9)(B)(i)(I) and (II) state that:

  • If a person accrues “more than 180 days but less than 1 year of unlawful presence during a single stay”
    • They are barred for 3-year
  • If a person accrues “1 year or more of unlawful presence during a single stay in the United States”
    • They are barred for 10 years
  • From:
    • Receiving an immigrant (permanent) visa or a nonimmigrant (temporary) visa to come to the United States;
    • Adjusting their status in the United States to that of a lawful permanent resident (Green Card holder);  or;
    • Being admitted to the United States at a port of entry.

The new NOIR procedure and policy means that DHS is in effect barring people from receiving any of the above benefits even though the person him or herself may have done nothing to violate any immigration law. 

This completely changes the complexion of our proposed workaround. As we discussed here, those who decide to use it can at least stop DHS from sending them out of the country where they are guaranteed not to be able to return for ten years.

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