USCIC held a teleconference to explain their interpretation and implementation of the USCIS Policy Memo on NTAs. Details can be found on USCIS's website. USCIS appears to have taken into consideration some of the concerns people have had regarding this policy, and the notes from the teleconference explain how the policy will be rolled out.
USCIS Quietly Makes Change That Could Cause Major Problems
On Thursday, June 28, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum that could cause significant complications for individuals applying for immigration benefits with the agency (which includes many international students and scholars as well as some immigrants). Among other things, the memorandum expanded USCIS’s authority to issue Notices to Appear (the document that is the start of removal/deportation proceedings) when an application for an immigration benefit/extension is denied and the individual is no longer “lawfully present” when that denial is made. It does not take into consideration that a denial could have been made in error or that USCIS’s processing delays could have resulted in the individual’s visa or immigration status expiring while they waited for USCIS’s decision. This is a significant departure from USCIS’s long-standing practice of instructing and allowing individuals to voluntarily leave the U.S. if their application is denied. The memorandum signifies a shift within USCIS toward enforcement rather than focusing on its mission to administer lawful immigration
This is only the latest in a series of troubling regulatory changes that are causing uncertainty for immigrants and nonimmigrants as they study and work in the United States. These changes mean our international and immigrant students, scholars, staff, and faculty must take even more time away from their studies and research to focus on complying with immigration regulations, and they must plan even further in advance as USCIS's processing times have slowed dramatically. All of this work is now done with the knowledge that innocent mistakes, simple oversights, or USCIS processing delays could result in the start of removal proceedings.
What Are “Notices to Appear”?
A Notice to Appear is the document that initiates removal proceedings for immigrants or non-immigrants (including international students and scholars). Once one has been issued, the individual must appear before an immigration judge in person when their case is considered. The process can take several months to begin, and immigrants are unlikely to be able to work during this time. If the individual does not appear, a removal order will be issued against the person, and they can be barred from entering the United States for five years.
What Was Changed By the Memorandum?
The policy memorandum made significant changes to 1) the reason removal proceedings can begin for lawful immigrants and 2) USCIS’s role in the U.S. immigration system.
Regulatory Delays May Result in Removal Proceedings
The memorandum states that, in addition to cases of fraud or criminal charges, USCIS will now issue a Notice to Appear when “upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.”
According to the National Law Review, “Every year USCIS adjudicates approximately 6 million petitions and applications for immigration benefits, such as naturalization applications, adjustment-of-status applications, change-of-status applications, and employment authorization petitions and applications.” There has been a surge in citizenship applications following the 2016 election resulting in record backlogs and processing times that are nearly twice what they were in 2016.
Federal law only requires that immigrants be in status when their application for a benefit or extension is filed. They are allowed to stay (and, in some cases, work) while they await USCIS’s decision even if their initial status expires. They can, however, fall “out of status” while they await that decision if the processing delay is longer than they expected.
Traditionally, if USCIS denied an application for an immigration benefit, it notified the applicant that they needed to depart the U.S. as part their denial notification. USCIS did not initiate the process to begin removal proceedings by issuing a Notice to Appear, and many immigrants left voluntarily.
Under this new policy, however, immigrants can be issued a Notice to Appear if their benefit is denied, and they may, therefore, be obligated to stay in the U.S. until their case is considered in an immigration court system that already has 700,000 cases waiting to be heard. In effect, immigrants will be forced to stay in the U.S. while they wait, but they will also not be able to work to earn money to support themselves or their family. Ironically, if the individual’s application is ultimately denied by the immigration judge, they will likely be barred from entering the U.S. for three or ten years due to the period of unlawful presence they accrued during the removal proceedings.
USCIS’s Role Shifting to Enforcement
Notices to Appear can be issued by any of the agencies of the Department of Homeland Security: Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or USCIS. Due to its service-oriented focus, however, USCIS has historically referred cases to ICE to decide if removal proceeding should begin.
This division was purposely set up in the Homeland Security Act, according to Benjamin Johnson, executive director of the American Immigration Lawyers Association, “so that the ‘service’ component was not overshadowed by the enforcement and border components.”
This memorandum means USCIS will now start removal proceedings without consulting ICE, and therefore, according to Johnson,“The Trump Administration is re-writing the Homeland Security Act without Congressional action.”
This Is Only the Latest Announcement
USCIS’s announcement regarding Notices to Appear is another policy change that means the immigrants and international students, scholars, researchers, and employees in our community must take even more time to focus on complying with immigration regulations instead of focusing on their studies and research. They must also plan for an administrative backlog that will likely only increase as more pressure and scrutiny is applied to each request.
This announcement is also troubling for those who work with international students and exchange visitors as it comes shortly after another policy memorandum made changes that could result in international students being barred from entering the U.S. for three or ten years due to minor visa infractions or changes in immigration laws and/or policies that the student may not learn about until long after the infraction or change occurs (see the IRT’s comment letter on that proposal on our website).