Over the summer, USCIS released a policy memorandum which requires adjudicators to issue notices to appear before an immigration judge (NTA’s) when, because of a denial they issue, they believe a foreign national is out of status. This is significant because until now, the government had traditionally not done so for employment or education-based cases. This development is particularly significant and troubling when it is considered that in several cases, it appears that an NTA will be issued before a foreign national has a chance to appeal their denial. As opposed to the long-standing practice of giving these individuals the opportunity to depart at will, the new policy can make USCIS forcefully place them before the immigration court for removal proceedings, putting their future on the line. It is becoming even clearer that under today’s USCIS, the risks are higher for those who would move to the United States.
The primary purpose of USCIS, when it was created by Congress as a sub-agency of the Department of Homeland Security, was to manage immigration services. The other sub-agencies, Immigration and Customs Enforcement (ICE) and The Customs and Border Patrol (CBP) exist as enforcement arms. One of the biggest criticisms of the previous immigration agency, the INS, is that it combined enforcement with services, causing procedural confusion and inefficiency. With the forced issuance of NTAs, it seems we are going back to the days of the INS.
Under previous guidance on the subject, issued in 2011, adjudicators must issue NTAs or refer to the Immigration and Customs Enforcement (ICE) only if the person posed a serious threat to national security and public safety or USCIS can formally establish that fraud had been committed.
The new NTA policy adds additional avenues in which the above-mentioned circumstances may arise. These new categories include but not limited to;
- Temporary Protected Status applicants whose countries’ TPS has been terminated;
- Aliens who have been convicted of or charged with any criminal offense, or who have simply committed acts that could be charged;
- Cases in which fraud and/or public benefits abuse have been substantiated;
- All citizenship applicants who are denied due to a criminal offense;
- And crucially, when an applicant is unlawfully present at the moment of denial.
Those who have acted otherwise lawfully but are the subjects of denied petitions without having another status approval as a back-up will be worst hit by this policy. USCIS denies hundreds of thousands of applications and petitions each year. Some of these denials can come as a surprise, and as if this situation isn’t alarming enough, the government has, with this latest rule, added additional fear to those situations.
If you receive an NTA or a denial for any reason, it is important that you contact experienced legal support as soon as possible to ensure that your interests are best represented. In the face of these moves by USCIS, our firm stands ready to support those confronted by these difficult situations. America has always flourished in part from its willingness to accept the best, brightest, and hardest working from around the world. At The Law Firm of Shihab and Associates, we have over 25 years of experience standing with these individuals as they build their futures in the U.S. Please contact us for a review of your case to ensure you have taken every possible precaution against denials or NTAs.