From Application Denials to Deportation

On June 28, 2018, USCIS released a guidance allowing a Notice to Appear (NTA) to be issued when an application is denied and the applicant has lost his or her legal status in the U.S. An NTA is serious -- it calls for the recipient to face an immigration judge in court and begins formal removal procedures. The guidance's wording suggested officers would have substantial leeway to issue the document upon denying an application. USCIS further clarified this new policy through a recent memo and a public conference.  

Under the recent memo, removal proceedings can be initiated for application denials due to fraud, abuse of public benefits, criminal issues (for N-400), and threats to national security. It will also apply to those without lawful status after having their case denied.  USCIS has begun implementation the new policy since October 1st. This covers I-485, I-539, and N-400 applications.

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TPS denial and subsequent unlawful status will still result in an NTA, as the 2003 memo dictates. The Oct. 1 implementation does not cover I-129, I-140, and asylum cases. DACA is also not covered in this memo.

As mentioned above, criminal issues are a targeted basis of issuing an NTA. Specifically, crimes of moral turpitude (based on having evil intent) and multiple criminal convictions are grounds for deportation. On October 1st, USCIS also gains the authority to issue NTAs on cases of egregious public safety or crimes instead of referring them to ICE.

USCIS will generally wait 33 or 18 days (periods for filing appeals and motions) after denial before issuing an NTA, or after the decision on an appeal or motion if applicable. Adjudicators can also consult a panel of immigration officers and legal counsel (prosecutorial discretion review panel) to help make the decision. Cases involving children will similarly be looked at by such a panel. 

Immigrant and non-immigrant workers sponsored by their employer as well as asylum seekers are not subject to the new guidelines. Still, any non-immigrant should carefully consider their options and take any application seriously.

Think Twice Before You File Any Immigration or Naturalization Application

The U.S. Citizenship and Immigration Services (USCIS) issued a recent policy guidance that indicates an expanded scope of power in issuing Notices to Appear (NTA). A Notice to Appear is a document that begins removal proceedings for a foreign national. It directs them to appear in immigration court in front of a judge and can end in deportation.

USCIS already has the authority under a previous guidance to issue NTAs in cases of national security concerns, cases where they are required to do so by statute or regulation, and in Temporary Protected Status and DACA cases. The recent policy update specifies that USCIS can issue an NTA on denied cases "for reasons other than fraud". This is a very broad definition, giving much leeway for USCIS to legally serve NTAs. There is a notable change in the scope of USCIS' authority between this new guidance and the previous one.

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Furthermore, under the new guidance, after USCIS denies an immigration application, the applicant could be placed in removal proceedings if the person is unlawfully present in the U.S.  Currently, USCIS would issue a notice instructing an out-of-status applicant to leave the country after denial.

Change of employers under H-1B status, for example, can become risky if the applicant leaves the initial employer before the petition to change employers is decided. A denial would result in the applicant becoming out of status.   Another example is a B1/B2 visitor applying for extension or change of status.  The current lengthy processing times mean that the applicant's authorized stay will almost certainly have ended when a decision is issued.  If her application is then denied, she is unlawfully in the country. The recent policy guidance gives the USCIS the authority to immediately issue an NTA in these circumstances. 

USCIS is also now able to serve NTAs to applicants charged or convicted of criminal offenses, regardless of whether the crime was related to the case. The policy guidance also writes that denial of N-400 applications on good moral character grounds because of criminal offenses can also result in an NTA. There is no specification on how old the charges or convictions need to be.

With these changes, the USCIS has become a powerful enforcer. The authority to serve NTAs under such broad definitions is substantial. It is not clear to what extent USCIS will exercise this new authority, especially given the huge backlog of removal cases already pending before the immigration court. Nonimmigrants must now plan very carefully when it comes to changing their immigration status. They should weigh the pros and cons before filing any petition with USCIS, as a denial could result in being placed in removal proceedings. An order of removal would make it very difficult for a foreigner to return to the U.S. in the future.