Submitting Immigration Applications Riskier Under New USCIS Policy: Denied Applicants Sent to Removal Proceedings

Going forward, noncitizens whose applications are denied by USICS will be issued an NTA and put into removal proceedings if they are not lawfully present in the U.S., or are lawfully present but are removable and fit into a specific enforcement category.

United States Citizenship and Immigration Services (USCIS) issued a policy memorandum on June 28, 2018 that substantially increases the cases in which Notices to Appear (NTAs) will be issued to people who apply for, and are denied, immigration benefits. The issuance of an NTA formally begins the removal (deportation) process and if you are filing applications with USCIS, you need to be aware of the new risks in light of this memo.

Who Is Subject to Removal Proceedings Under New USCIS Guidance?

Noncitizens whose applications are denied by USICS will be issued an NTA and put into removal proceedings if they are not lawfully present in the U.S., or are lawfully present but are removable and fit into a specific enforcement category. USCIS may also issue NTAs in cases of suspected fraud or for certain criminal convictions.

This is a significant change in policy. Under the previous, 2011 memo NTAs were issued only when required by statute (including in cases where USCIS denied petitions to remove conditions of residence, NACARA, and others, or declined to approve an asylum case). Under the 2011 memo, noncitizens presenting “egregious public safety” situations, including those convicted of aggravated felonies, human rights violators, and suspected gang members would also be issued NTAs.

This change in policy will be especially harmful to people in the U.S. applying for humanitarian relief, such as under the Violence Against Women Act (VAWA) or for U and T and Special Immigrant Juvenile Status (SIJS) visas or status. Previously, if a person who was not lawfully present applied for one of these but was denied by USCIS, he or she would not normally be issued an NTA.

Now, these applicants will be subject to removal if USCIS denies their application. Furthermore, applicants for Temporary Protected Status (TPS) who are denied will be issued an NTA and put into removal proceedings, although they will have the opportunity to apply for TPS again before an immigration judge.

Additionally, the new policy will be harmful to people who are considered lawfully present before their application is denied by USCIS. This includes those who apply for adjustment of status, extension of nonimmigrant status, a change of nonimmigrant status, and others. Because of long processing times for many of these applications (in which the visas they are attempting to extend or change expire), there may be no way for them to avoid being issued an NTA if and when their case is denied. After a denial and issuance of an NTA, these applicants will not be able to simply leave the U.S. as they would have been able to before, but will have to wait for a hearing in immigration court to request voluntary departure from a judge.

Who Will Not Be Affected by the New USCIS Guidance?

USCIS will continue to follow the previous 2011 memo with respect to applications for the Deferred Actions for Childhood Arrivals (DACA) program. Under the 2011 memo, unsuccessful DACA applicants would be issued an NTA only in a case of fraud or for certain criminal convictions.

If You Already Have an Application Pending With USCIS

The memorandum took effect the day it was issued, on June 28, 2018. If, therefore, you have already filed an application with USCIS, you should consult with an immigration attorney to assess the risks going forward with your case.

You may want to determine whether you would qualify for relief if you are put into removal proceedings. Your attorney may also want to prepare a request for prosecutorial discretion for you (asking that you not be issued an NTA) in the event that your application is denied.

If You Plan to File an Application With USCIS

Now more than ever, it is important to consult an immigration attorney before applying for immigration benefits with USCIS. You will want to realistically assess your chances of being granted the benefit you seek and weigh it against the potential risks and costs of being put into removal proceedings.

Effective Date: June 28, 2018