USCIS Policy Memo Expands USCIS's Ability to Place Foreign Nationals in Removal Proceedings

The United States Citizenship and Immigration Service (USCIS) recently issues a new Policy Memorandum (PM) titled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.”  This new guidance stems from the January 25, 2017 Executive Order “Enhancing Public Safety in the Interior of the United States” and it seeks to expand the instances in which USCIS must issue Notices to Appear (NTAs) when denying certain applications for benefits, such as requests for extensions of status, changes of status, and adjustment of status.  

By way of overview, an NTA is a document akin to a subpoena that requires an individual to appear in immigration court and begins deportation (removal) proceedings. It is typically Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) that are tasked with issuing NTAs and USCIS’s ability to issue them was largely limited by 2011 USCIS guidance restricting their issuance to cases involving national security concerns, denial of refugee or asylum, fraud, public safety, etc.  Under this new guidance, however, USCIS will be required to issue an NTA where “upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present,” effectively giving the agency, which is predominately a benefits granting entity, expanded enforcement capabilities normally designated to ICE and CBP.

As a preliminary note, this new guidance impacts a wide variety of immigration benefits and applications.  However, because our Firm’s practice focuses on business immigration, this Alert will address how the new PM could impact individuals in the U.S. on nonimmigrant visas and individuals seeking green cards through employment, family, or investment.  To that end, the PM now requires USCIS to issue NTAs in the following situations:

  1. Where upon the denial of an application or petition for an immigration benefit, the foreign national no longer has immigration status in the United States. Examples include:
    1. When an individual applies for adjustment, while their application is pending their nonimmigrant status lapses, and their adjustment of status application is ultimately denied.
    2. When an individual applies for a change of status (for example from F-1 to H-1B) and their current nonimmigrant status expires while the change of status is pending, and the change of status request is ultimately denied.
  2. Naturalization applications where the application has been denied on good moral character grounds based on an underlying criminal offense that would render the individual removable.

The most troubling aspect of this new policy is that normally individuals in the above scenarios would typically depart the U.S. shortly after the denial of a benefits request.  Now, however, once an NTA is issued, the individual is required to remain in the U.S. to appear in immigration court (during which time they continue to accrue unlawful presence).  Thus, the new policy will often times have the absurd result of increasing the number of individuals unlawfully present in the U.S. who would have otherwise departed following the denial of their application or petition.

Finally, given the large backlog of cases currently pending in immigration court, in the past USCIS (as well as ICE and CBP) often exercised prosecutorial discretion in determining whether to issue an NTA in a given case, thus allowing them to direct the U.S.’s limited enforcement resources to cases involving dangerous criminals, gang violence, fraud, etc.  The new PM now drastically limits USCIS’s ability to exercise prosecutorial discretion in employment-based cases, even where an individual poses little risk of significant overstay, by now requiring that any deviation from the above guidelines regarding NTA issuance be authorized by a Prosecutorial Review Panel before exercising prosecutorial discretion to not issue an NTA in a given case.

In light of the increase in inconsistent visa adjudications resulting more frequent visa denials for even routine visa filings, D&S recommends the following best practices to mitigate the risk of being issued an NTA upon the denial of a visa filing:

  1. Filing extensions of status and changes of status as early as possible and with premium processing, where available, to minimize the chances of the existing status expiring before the extension/change of status request is adjudicated;
  2. Wherever possible, ensure that foreign nationals continue to maintain any available underlying nonimmigrant visa status when undergoing green card sponsorship up until the time their green card is received;
  3. Ensure foreign national employees are encouraged to share any relevant information that may impact the adjudication of an application or petition, including all prior visa denials, arrests, and convictions, even if expunged or sealed.

While the PM became effective on June 28, 2018, USCIS offices have been given 30 days to develop processes for case adjudication under PM’s new directives.

As this is a new policy, the above guidance focuses on the immediate impact we anticipate from USCIS’s expanded use of NTAs noting that the more far-reaching consequences are still playing out as cases are now adjudicated under this new guidance and with the new restrictions on prosecutorial discretion.  D&S will continue to monitor the situation and provide updates as they become available.