July 17, 2018

Two New USCIS Policy Memos Signal Agency’s Enforcement Priorities

On July 5, 2018, the U.S. Citizenship and Immigration Services issued a Policy Memorandum, dated June 28, 2018, which updates their guidance in referring cases to Immigration and Customs Enforcement and in issuing a Notice to Appear in immigration court. Then, on July 13, 2018, USCIS issued another Policy Memorandum, this time revising guidance to their adjudicators on when filings may be denied without a Request for Evidence or Notice of Intent to Deny. Read together, these two notices signal that USCIS is both increasing the odds that a petition or application will be denied, and the odds that the foreign national who is the subject of the petition or application will find him or herself in immigration court proceedings, defending against removal from the United States.

The June 28th dated Policy Memorandum becomes effective immediately. USCIS officers following this policy are directed to either refer a foreign national to ICE for further review, or to directly issue a Notice to Appear (NTA), placing that individual into removal proceedings. An NTA is essentially a summons to immigration court, where the government charges an individual as being “removable” from the United States. Under previous guidance, USCIS was tasked with issuing NTAs only in limited circumstances, leaving the prioritization of immigration enforcement to ICE. Under this new guidance, USCIS adjudicators are now required to issue an NTA upon denial of an application, petition, or immigration benefit request if the foreign national is otherwise removable. Other circumstances in which USCIS will issue an NTA under this new guidance include cases in which foreign nationals may be removable based on criminal or security grounds, fraud or misrepresentation, or subject to expedited removal. This means that if, for instance, an H-1B visa holder applies for permanent residence and his or her H-1B status expires in the meantime (which is allowed), he or she could be referred to immigration court by USCIS if the permanent residence application is denied. The foreign national then must remain in the U.S. in order to respond to the charges in immigration court, because departing before his or her appointed court hearing could result in an automatic order of removal, carrying further negative consequences.

The July 13th Policy Memorandum will become effective on September 11, 2018, and will apply to all applications, petitions and requests received by USCIS after that date. This policy memo updates previous guidance in which the agency was instructed to issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) unless there was “no possibility” that a deficiency in the filing could be overcome by further evidence or information. Under the guidance that will take effect in September, adjudicators now will simply deny a filing, without first issuing an RFE or NOID, if they determine there is a lack of sufficient initial evidence, as required by regulations, statute or form instructions. As an example, the Policy Memo states that if an Adjustment of Status (“green card”) application is submitted without a required I-864 affidavit of support, the entire application will be denied. The application’s denial may be appealed, or refiled, but in the meantime, the USCIS adjudicator may have been required to issue a Notice to Appear to the foreign national applicant, beneficiary or requestor, thereby placing the person in removal proceedings.

In light of these two recent Memoranda, it is increasingly necessary to present carefully and thoroughly prepared filings to USCIS. The risks in dealing with USCIS without competent, capable counsel are too high. The stakes are ever higher. An adverse decision could result in the opening of immigration court proceedings as well as disruption to business operations and daily lives. These memos will likely have a chilling effect on the immigrant community and their employers, but our firm will continue to leverage our experience and capable representation to obtain results on behalf of our clients.

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