On July 17, 2018, AILA released “AILA Policy Brief: New USCIS Notice to Appear Guidance.” This document provides an overview of recent policy shifts regarding USCIS, as well as how this policy shift will impact immigrants in the U.S.
On June 28, 2018, USCIS announced a new policy regarding the issuance of Notices to Appear (NTA). According to this new policy, NTAs will be issued if an applicant or beneficiary is not lawfully present at the time an application or petition is denied. NTAs are the charging documents that initiate removal proceedings. Various DHS personnel, including USCIS, ICE and CBP officers, have the authority to issue these documents and initiate removal proceedings.
USCIS released a memorandum on July 5, 2018 that significantly altered DHS policy as to when USCIS, as opposed to ICE, will issue NTAs and expanded the categories of people who will be issued NTAs. Essentially, this mandates USCIS issuance of an NTA when an application or petition for immigration benefits is denied and the applicant or beneficiary is deemed removable. Most significantly, NTAs will now be issued in cases where the applicant, beneficiary or requestor is “not lawfully present” in the U.S. at the time of application, petition or request for an immigration benefit is denied.
Prior to this guidance, the approach to immigration was based on the idea of prosecutorial discretion. The concept of prosecutorial discretion in the context of immigration benefits adjudications has been memorialized in at least four memoranda. Previous guidance was silent on NTA issuance where a person is denied a benefit request and is not lawfully present. In these cases, rather than issue a NTA, USCIS’s longstanding practice was to notify the individual of the denial of their application or petition and of their obligation to depart the United States. If the individual failed to depart, it was then left to ICE to determine whether that person was an enforcement priority requiring the initiation of removal proceedings. Less than 2 percent of the more than fifty million nonimmigrants who entered the U.S. overstayed.
The new guidance turns USCIS into a third enforcement component of DHS, which is contrary to the will of Congress. When legacy INS was abolished, the sole functions transferred to USCIS to involve the adjudication of immigration benefits. Enforcement functions, on the other hand, were assigned to what ultimately would become ICE and CBP. Pre-2018 USCIS NTA policy also reinforced this separation of functions. Although USCIS has the authority to issue NTAs, and has done so since its inception, it has primarily issued them in cases where it is required to do so by law. Given the breadth of situations where USCIS NTA issuance is mandated under the new policy, and the fact that USCIS in most cases will not consult with or transfer cases to ICE for NTA issuance, DHS is effectively turning USCIS into a third immigration enforcement component of DHS.
Despite efforts to reduce processing times and case backlogs for more than a decade, USCIS’s total workload has grown substantially and backlogs have continued to rise. The elimination of prosecutorial discretion, the termination of Temporary Protected Status for numerous countries and the implementation of the new NTA policies will likely increase the immigration court backlog. These delays have significant repercussions on the lives of individuals and U.S. businesses. By requiring adjudicators to issue NTAs rather than leaving that function to ICE and CBP, USCIS will likely end up diverting substantial resources from adjudications towards enforcement activities. USCIS also plans to increase its fees later this year, in part due to this diversion of resources. Essentially, this means USCIS will pass the costs of its new NTA policy onto the applicants now at risk of deportation.
One major area that will be affected is the period following a denial. Previously, instead of beginning immigration proceedings, individuals were given an opportunity to get their affairs in order and depart the United States. According to DHS statistics, less than 2 percent of the more than fifty million nonimmigrants who entered the U.S. overstayed. Prior to this new guideline, an incorrect or arbitrary denial would result in a notice to depart the United States that could be navigated by most individuals while they elected to appeal or refile. Now, however, incorrect and arbitrary denials will result in the initiation of removal proceedings, even when the decision will ultimately be overturned or the person could reapply and receive an approval.
Once an NTA is issued, ignoring it and departing the United States is not an option. Furthermore, it is important to note that the accrual of unlawful presence is not tolled by the initiation of removal proceedings.
This new policy will likely have major impacts on the immigration process as well as the functions of USCIS. If you have questions regarding your immigration status, be sure to contact Berardi Immigration Law to schedule a consultation with one of our attorneys today!
***UPDATE: On July 30, 2018, USCIS announced a delay in the issuance of the June 28, 2018 memorandum expanding the situations in which a foreign national is to be issued a notice to appear (NTA). The memo initially called for USCIS to finalize updated guidance on this matter within 30 days. This operational guidance, however, has not yet been finalized. Therefore, implementation of the memo is being postponed for the time being. No details have been provided as to when the policy ultimately may go into effect.***
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