A Tiger Lurking in the Grass: What Employers Need to Know about the New “Continuous Vetting” Initiative
Employers and their foreign workers must ensure that there is not a tiger lurking in the garden with respect to the viability of their visas because of the significantly increased possibility of visa revocations, deportations, and scrutiny.
The Department of State has announced that it will conduct a comprehensive and systemic review of more than 55 million visas through a process called “continuous vetting.” This announcement is significant because the federal government retrospectively will examine the viability of all previously-issued visas and will continuously evaluate whether foreign citizens have violated the terms of their visas moving forward. This marks a significant departure from its past practice of conducting eligibility assessments at the time of filing for immigration benefits, at interviews, or certain enforcement activity. “Continuous vetting” means the federal government can and will review foreign nationals’ on-line activities, governmental databases, and law enforcement records to determine if the foreign nationals were ineligible for their visas or have violated the terms of their issued visas. In addition, the federal government will determine if foreign citizens have overstayed their periods of authorized stay, have engaged in unauthorized conduct, have engaged in criminal conduct, or have created a public safety issue. The immigration service and consular officers will scrutinize foreign citizens’ actions and statements to determine if there are “any indications of hostility toward the citizens, culture, government, institutions or founding principles of the United States.”
The federal government’s continuous vetting carries significant consequences for employers and foreign workers, such as:
Revocation of visas, which is particularly disastrous in view of Bouarfa v. Mayorkas in which the Supreme Court recently ruled that federal courts lack jurisdiction to review decisions by the Department of Homeland Security to revoke previously approved petitions.
Deportation of foreign workers to their home country or to a third country.
Increased Requests for Evidence or Notices of Intent to Deny, which will result in the expenditure of more time, money, and resources.
More in-depth consular interviews and longer processing times abroad, which could result in delayed start dates or prolonged time abroad, affecting ongoing operations in the U.S.
Losing foreign talent, which will affect profitability, productivity, and morale.
The stakes are high. Employers and foreign workers should take the following actions:
Review all previously submitted petitions and applications to ensure that they were accurate and completed in their entirety.
Work with immigration counsel to proactively correct any deficiencies in previously submitted petitions.
Track all periods of authorized stay and authorized activities for foreign workers and document their compliance.
Coach and counsel foreign workers on how their off-duty conduct, such as making political posts or sharing memes, might jeopardize their status.
Be more rigorous in preparing foreign workers for interviews with United States Citizenship and Immigration Services, Customs and Border Protection, and consular officers and ensure they have an appropriate understanding and familiarity with the benefit request submitted on their behalf and access to relevant documentation.
Advise against international travel where a foreign worker has been assessed to have any current or prior vetting flag concerns.
Develop a plan of action in the event that a revocation, deportation, or enhanced investigation occurs.
The Immigration Practice Group at Pierson Ferdinand (immigration@pierferd.com) includes Junior Partner Allison Bustin (allison.bustin@pierferd.com), Partner Giovanni Antonucci Di Cesare (giovanni.antonucci@pierferd.com), and Founding Partner Sanford Posner (sanford.posner@pierferd.com), all of whom are available to counsel and to address any immigration matters.
This publication and/or any linked publications herein do not constitute legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, the author(s) and PierFerd assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, this publication may constitute Attorney Advertising. © 2025 Pierson Ferdinand LLP.
