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Changes to USCIS NTA Policy Harm Legal Immigration


In two new policy memorandums issued by USCIS in the past few weeks, the Administration has altered past processing practice to align with the President's hardline immigration tactics in an attempt to further limit and deter legal immigration. The first memo, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens was issued on June 28, 2018; the second memo, Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator's Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b) was issued on July 13, 2018.

This article will address the June 28th NTA Memo.


Under the June 28th NTA Memo, USCIS updates the process for issuing Notices to Appear-meaning referring a case to immigration court for removal/deportation proceedings-and for referring cases to ICE. This memo is meant to conform to the President's Executive Order 13768 and related implementation memorandum from former Secretary John Kelly which sets out removal priorities for immigration court. The EO and implementation memo prioritize individuals "who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal." The implementation memo further prioritizes individuals who have abused public benefits programs and individuals with past, un-effectuated removal orders.

The most troubling part of the June 28th NTA Memo comes on page 7, which reads:

V. Aliens Not Lawfully Present in the United States or Subject to Other Grounds of Removability

USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.

This mandate expands beyond the scope of the EO and implementing memo by targeting individuals who are denied petitions or applications by USCIS and are "unlawfully present" in the US. As many immigration lawyers can attest, the term "unlawfully present" is not clearly defined. In its most common usage, if an individual accrues more than 180 days or one year of "unlawful presence" in the US and departs, they are barred from reentry for three and ten years respectively. Generally this refers to time accrued after the expiration of a non-immigrant status; However, when and how an individual accrues "unlawful presence" is very case specific.

For example, let's assume an individual is lawfully present in the US on a non-immigrant visa, such as an H-1B temporary worker visa, and she applies for a Green Card (concurrent I-140/I-485) prior to the expiration of her H-1B entry. Let's also assume, because of significant backlogs, USCIS does not make a decision on her case prior to the expiration of her H-1B. The next day, this individual is now "out-of-status" but is not accruing "unlawful presence" because she filed her application prior to the expiration of her non-immigrant visa.

Previously, USCIS would issue a denial and the individual would have time to decide whether to refile a new Green Card application or leave the US. Since she had not accrued more than 180 days of unlawful presence, she is then free to reapply for a Green Card outside of the US if she chooses.

Under this new memo, it seems that upon denial, USCIS will issue an NTA to the individual placing her into removal proceedings regardless of how many days of "unlawful presence" she has accrued. This creates a number of problems as the individual now has to decide whether to stay in the US, continuing to accrue unlawful presence, and face a backlogged immigration court, or leave the US and possibly receive an in absentia removal order which bars reentry for ten years. Suddenly, what was once a small administrative issue has expanded into a much larger removal case with significantly higher stakes.

Further, there are a number of exceptions to inadmissibility and being "out-of-status" where "unlawful presence" does not matter i.e. INA 245(c) which allows immediate relatives of US Citizens to still adjust status even if they are out of status, INA 245(k) which permits individuals applying to adjust status under certain employment categories to be "out-of-status" or work without authorization for up to an aggregate 180 days and still adjust.

The June 28th NTA Memo, which went into immediate effect, does not clarify how USCIS will determine if an individual is "unlawfully present" nor how cases which fall under various exceptions will be handled. The assumption is that if an individual does not have another status at the time of denial, USCIS will issue an NTA. This contradicts past USCIS procedure and runs contrary to many of the statutory exceptions built into the law.

This mandate in the June 28th NTA Memo does not fall under the criminal or security grounds described in EO 13768 or its corresponding implementing memo. It goes much beyond the scope and intent of both documents and seeks to create frustration and fear for legal immigrants who otherwise conform to statutory rules and procedures. This Memo sends a clear message that the Administration does not just want to curb "illegal" immigration, but to curb and prevent any immigration into the US. Such action is contradictory to the foundations and aims of this country.

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