'Zero Tolerance' Policy Withdrawn
Posted Oct 03, 2003

In a piece of good news that we hope will benefit many, we have learned that a policy, referred to as "zero tolerance" by the Immigration Service, apparently has been withdrawn. The change was reportedly made via an eMail directive to appropriate employees of the U.S. Citizenship and Immigration Service (CIS). This should make life a bit easier for many individuals seeking to change or extend their nonimmigrant statuses.

Many of our MurthyBulletin and MurthyDotCom readers know, through personal experience, that, in order to extend or change nonimmigrant status in the U.S., it is necessary to be in status when the request to extend or change status is filed. What this means for employment-based immigration statuses, such as the H1B or L-1, is that it is necessary to have pay stubs from the current employer covering the time immediately preceding the new case filing. For many years there had been a bit of flexibility in this matter, so that brief gaps between the last pay stub and the filing would not automatically result in the denial of the change or extension of status request. However, that all changed in 2002, when a "zero tolerance" policy Memo was issued, essentially eliminating the examiners' discretion in this area. See, our May 10, 2002 MurthyBulletin article, 'Zero Tolerance' Policy for Those out of Status, available on MurthyDotCom. This "zero tolerance" was quite harsh for many nonimmigrants, and apparently did not work well for the government, either.

The eMail withdrawing the policy has not been made public as of this writing. In a September 24, 2003, AILA meeting attended by all of the attorneys from The Law Office of Sheela Murthy, P.C., we learned that the eMail was intended to demonstrate to the examiners that they have discretion. One of the reasons for the withdrawal of the policy is that, in the past few months, the rate of Requests for Evidence (RFEs) has skyrocketed with no apparent explanation. The belief is that the examiners have not felt they could overlook even the most minor technical violation. The result is that they are frequently asking for additional evidence, such as pay stubs through the time of the case filing, as well as other proof of employment.

The results of this change in policy are yet to be seen. For our readers, we would continue to emphasize the importance of maintaining status and filing for changes or extensions of status in a timely fashion. The regulation on this issue is actually quite restrictive, allowing violation to be overlooked only when there are "extraordinary circumstances beyond the control of the applicant or petitioner" and the delay is commensurate with the circumstances. However, even without circumstances that would meet the "extraordinary" standard, we believe there is a legally permissible basis for taking a more practical approach to the matter. There is a long-standing concept in the law of the de minimis exception. This comes from the Latin phrase De minimis non curat lex, meaning "the law does not care for, or take notice of, very small or trifling matters." This concept permits some inherent level of discretion, even if it is not explicitly provided within the wording of the law.

We are pleased that there is a movement in the positive direction with the purported withdrawal of the zero tolerance Memo. In the real world, paperwork takes time, employers have to follow established office procedures before signing documents or releasing information, and nonimmigrants trying to understand a complex system of laws do not always know that the derivative spouses and children must have their statuses extended separately. We hope that this is the beginning of a more humane policy and that there is less disruption to the lives of foreign nationals and the ability of the foreign national workforce to provide needed services to U.S. employers, helping the economy.