Apologizing for inadequate outreach on its new protocol, the Citizenship & Immigration Service (CIS) has requested feedback on its “surprise” policy – implemented September 12 – to send original approval notices to Petitioners and Applicants directly, rather than the attorneys of record. Attorneys of record with properly filed Forms G-28 now receive unofficial “Courtesy Copy” approval notices. CIS said its new policy will ensure the original notices reach the Petitioner or Applicant and combat possible immigration service scams.

A number of immigration attorneys, including those from Jackson Lewis, complained of the sudden implementation of the policy and challenged the legality of such implementation. The regulations clearly state that notices shall be given to the attorney or representative of record.

When an attorney is hired to assist with an immigration filing, a number of safeguards are attendant to the attorney-client relationship, including:

• Document Integrity and Security – all notices and critical, original documents should be mailed to the attorney so that they can be verified to ensure the case was approved and the notice printed properly. The attorney is in the best position to advocate on behalf of the client to get any errors corrected. Similarly, most immigration attorneys are also responsible for case management tracking and other tasks that minimize the risk of extreme case delays and complications.

• Issues with I-9 Completion and Driver’s License Requirements – foreign nationals working in the U.S. in nonimmigrant status (e.g., H-1B, L-1, and O-1) are often required to show their original I-94 document when completing various state and federal applications. When a change or extension of nonimmigrant status is requested, the original approval notice contains the foreign national’s new I-94 card. Therefore, mailing to the wrong address can cause enormous delays and problems.

• Requests for Evidence Timing Deadlines – case processing often involves “Requests for Evidence (RFEs)” from the CIS, in which the adjudicating officer asks for information and documentation to supplement the case filing. RFEs are issued under strict processing deadlines, normally only 30 – 90 days. Failure to respond can result in a delay of the case, which can be detrimental to the foreign national’s status. Thus, RFEs “lost” in employer mailrooms or apartment buildings or temporary residences have resulted in employees losing work authorization and status.

Jackson Lewis is working with the American Immigration Lawyers Association (AILA) to persuade the government to suspend the new policy.

CIS said it will review all comments, as well as examples sent in through its Office of Public Engagement about this policy, but the policy stands.

Jackson Lewis’ immigration team represents national employers of all sizes in various industries. We are experienced in quickly implementing filing strategies for our employer-clients who are filing I-129 and I-140 petitions on behalf of foreign national employees. Employers should alert their attorneys of any mail from the Department of Homeland Security or CIS immediately.