On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) issued a policy memorandum on Notices to Appear (Forms I-862, hereinafter “NTAs”). The new NTA policy is intended to implement the Trump administration’s enforcement priorities as set forth in the January 17 Executive Order “Enhancing Public Safety in the Interior of the United States.” The new policy not only has significant ramifications for foreign nationals but also gives the USCIS an abundance of unchecked authority. From its inception, the USCIS was never intended to be an immigration enforcement agency. That role was reserved for the ICE. The sole function of the USCIS was to administer immigration benefits (i.e., processing applications for visas, green cards, naturalization and humanitarian benefits). The Policy fundamentally shifts the way in which the USCIS operates. As explained by Benjamin Johnson, the director of the American Immigration Lawyers Association, “The Homeland Security Act was designed to have three components: service, enforcement and border control, each under a different agency, particularly so that the ‘service’ component was not overshadowed by the enforcement and border components. The Trump Administration is re-writing the Homeland Security Act without Congressional action.” Historically, the Department of Homeland Security (DHS) has relied upon the enforcement components of DHS, specifically the Immigration Customs Enforcement (ICE), to handle NTA in the majority of circumstances. Under the new policy, USCIS will be able to issue an NTA on its own accord and place individuals in removal proceedings upon denial of an application or petition for immigration benefits if the individual is deemed removable at the time of the denial. More significantly, NTAs will be issued to every person who is not “lawfully present” in the United States at the time that their application benefit request or petition is denied. A second policy memorandum issued at the same time makes applicants for Deferred Action for Childhood Arrivals (DACA) the exception to this new NTA policy.
The Impact of the Policy on Foreign Nationals
Opponents to the new policy argue that it will deter individuals who are eligible for immigration benefits from applying out of fear that they will be faced with deportation proceedings if they are denied. Consequently, the USCIS will force more people into removal proceedings despite the fact that they may have lived and worked lawfully in the U.S. and would otherwise seek appellate review or depart voluntarily if their applications were denied. This could potentially include workers who have complied fully with U.S. immigration laws and have subsequently been informed that they no longer qualify for the visa status they have lawfully held for years. The policy ends all prosecutorial discretion in determining under what circumstances to issue NTAs.
In addition, many foreign nationals will now receive NTAs instead of being permitted to leave the United States voluntarily. Previously, if an application for immigration benefits was denied, the individual could leave the United States and either remain abroad or attempt to obtain a new visa that would permit a return to the United States. Under the new policy, once an individual is issued an NTA, he is obligated to remain in the United States and appear before an immigration judge. If the person fails to appear before the immigration judge, then a deportation order will be issued. On the other hand, if the individual chooses to remain in the United States and fight the removal proceedings, he is considered “unlawfully present” during the entirety of those proceedings. If the individual prevails in court, his status will be restored, however, if he loses he will potentially be subject to a 10-year ban from the United States. Furthermore, individuals who are placed in deportation hearings will have difficulty obtaining legal authorization to work during those proceedings.
The Policy’s Impact on Government Resources:
The new policy will undoubtedly increase the issuance of NTAs. This will present an almost insurmountable administrative burden for USCIS with ever increasing processing times and backlogs. USCIS should also anticipate increased litigation now that the consequences of denied applications will likely result in deportation proceedings. In addition, the widespread issuance of NTAs will deplete the immigration courts: diverting the courts’ scarce resources and creating longer wait times. The immigration court backlog is already reported to be at over 700,000 cases as of May, 2018. These backlogs will skyrocket as a result of the number of new cases that will be added as a result of this policy.
Implications of the Policy on Foreign Nationals and U.S. Employers
Foreign nationals should take all possible precautions to make sure that their work visa petitions are filed and adjudicated to completion before their existing status expires so that if the petition is denied, they will remain in another lawful status and can avoid an NTA. Employers should consider sponsoring their workers for green cards as early as practicable to maximize the likelihood that the green card can be approved before the employee’s underlying work visa expires or is denied for extension.
For More Information
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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration