Summer 2018 USCIS Policy Changes

In the Summer of 2018, United States Citizenship and Immigration Services (USCIS) announced three significant policy changes that will likely affect many of those who are applying for immigration benefits. The first policy change was announced on June 28, the second on July 13 and the third on August 9.

On June 28, USCIS announced that cases that are denied by USCIS will be issued a Notice to Appear, and referred to the Immigration Court for further processing. USCIS has announced that only certain cases will be affected, including but not limited to questions of national security, criminal issues, fraud and willful misrepresentation, and those who, after the denial of the USCIS petition or application, will have no underlying status and are unlawfully present in the United States. USCIS has slowly begun to implement this policy, and has included specific applications that are being reviewed for referral to the immigration court, however, most applications are vulnerable to this policy.

Regardless of whether the application you are applying for is listed specifically, it is increasingly important to always ensure that the applications are correctly completed. If a case is denied, there is a chance that it will be referred to Immigration Court and you will need to face an Immigration Judge to defend your immigration case.

Thereafter, on July 13, 2018, USCIS issued a policy memo that fundamentally changed the immigration landscape. In similar fashion, the August 11 USCIS policy memo impacted the immigration world. In the past, after submitting a case to USCIS, if there was a document missing or the officer required additional information, USCIS would issue a “Request for Evidence” or an “RFE”. However, on August 11, USCIS implemented a policy that changed this procedure. Now, after submitting a case to USCIS, they will not typically issue Requests for Evidence for missing documents, and instead will simply deny the case.

In a similar fashion, the August 9 policy drastically affects those applying for immigration benefits. The August memo impacts those who are in the United States holding F, M, or J nonimmigrant visas. In the past, when a nonimmigrant was admitted to the United States on one of those three visas, their I-94 (the length of time they were permitted to remain in the U.S.), stated “duration of status”. This meant that nonimmigrants holding F, M, or J visas were permitted to remain in the United States without a definitive end date. As a result, many nonimmigrants who initially entered the United States on an F, M, or J visa, and stayed beyond their studies and often remained in the United States for years after without ever accruing unlawful presence. Unlawful presence can have a severe effect on your future immigration plans. Accruing more than 180 days, but less than 365 days, of unlawful presence will result in a 3-year bar from reentering the United States. In addition, accruing 365 days or more of unlawful presence results in a 10-year bar from reentering the U.S.

The August 9 memo states that USCIS will begin counting the days of unlawful presence the day after an F, M, or J status violation occurs. This means, for example, that the day after an F visa holder stops attending school, unlawful presence begins to accrue. This will have significant impact on any F, M, or J nonimmigrant visa holder’s future immigration plans. It is important to always remain in lawful nonimmigrant status so as to not trigger the immigration bars. Triggering a reentry bar would cause a major roadblock to any future immigration application.

These three policy memoranda fundamentally changed immigration policy in the United States. It is crucial, now more than ever, to ensure that immigration cases are being handled by a licensed immigration attorney, someone familiar with both immigration law, and these new USCIS policy memoranda.

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