What is it? On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance, dated June 28, 2018 regarding the issuance of Notices to Appear (NTA). USCIS will take an incremental approach to implement the June 28, 2018, policy memo.
Starting October 1, 2018, USCIS may issue NTAs on denied status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.
The NTA policy memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.
An NTA is a charging document that is issued to foreign nationals who are deemed “removable” from the United States.
People who receive NTAs must appear before an immigration judge to determine whether they should be removed from the United States (which carries significant penalties), or whether they are entitled to some type of relief from removal, allowing them to remain in the United States legally.
Why is this bad policy? The new USCIS NTA policy is a dramatic change from more than a decade of consistent practice that will divert scarce USCIS resources and needlessly force a massive number of individuals into our already overburdened immigration court system.
In 2003, when DHS was created, Congress purposefully separated the enforcement functions and the service functions of the legacy INS into three components: CBP (border enforcement and inspections); ICE (interior enforcement) and USCIS (adjudication of immigration benefits).
Prior agency guidance appropriately shifted NTA issuance to the interior enforcement arm of DHS. With ICE largely responsible for issuing NTAs, USCIS could focus primarily on benefits adjudications, its primary responsibility.
The new guidance turns USCIS into a third enforcement component of DHS.
An NTA will be issued and the person will be forced into the court system, preventing them from departing the U.S. even if they want to.
The new policy could also sweep foreign students into court. USCIS recently changed its requirements for students, who already face confusing regulations, that will render many of them out of status, even though they were following longstanding policy.
The new policy is based on the false assumption that everyone who comes to the United States and seeks an immigration benefit intends to break the law by overstaying if they are denied. However, DHS’s own data contradicts that assumption.
According to the May 2017 DHS Overstay Report, of the more than 50.4 million nonimmigrants who entered the U.S. and were expected to depart in FY2016, less than 2 percent overstayed.
Instead of appropriately providing an opportunity to individuals to get their affairs in order and depart the United States, many thousands of individuals will be needlessly shuttled into our already over-burdened immigration court system, which is currently backlogged with over 700,000 pending cases.
Who is impacted? According to USCIS, the January 25, 2017 Executive Order, “Enhancing Public Safety in the Interior of the United States,” provides support to USCIS authority to initiate removal proceedings against any individual who is removable.
The new NTA guidance mandates USCIS to issue an NTA upon denial of an application, petition, or immigration benefit request where the applicant, beneficiary, or requestor is removable except in very limited circumstances.
The new guidance mandates USCIS to issue an NTA to every person who is “not lawfully present” in the United States at the time an application, petition, or request for an immigration benefit is denied. This is particularly significant because USCIS is simultaneously attempting to re-define “lawful presence” more narrowly via