INTRODUCTION
USCIS recently issued a Policy Memorandum (PM), announcing that it will change the way it decides whether to issue an NTA (Notice to Appear) and place someone into removal proceedings in immigration court.
An NTA is a charging document that is issued to foreign nationals, placing them in removal proceedings and directing them to appear before an immigration judge.
As per the new PM, USCIS will issue an NTA when it denies an application or petition for benefit and the alien is unlawfully present.
The PM is intended to implement Trump Administration’s enforcement priorities as set out in January 2017 Executive Order “Enhancing Public Safety in the Interior of the United States.”
WHAT IS THE NEW USCIS POLICY ON NTA
Under the Department of Homeland Security, there are three agencies: USCIS, CBP and ICE. Even though all Agencies had the legal Authority to issue NTAs, it was until now primarily the function of ICE to issue NTAs. USCIS was an agency focused on “Benefits” and CBP on Border protection.
This new PM is a sweeping change, as it now mandates USCIS to issue NTAs when they deny an application or petition for benefit and the alien is unlawfully present; the concern is that USCIS will now be transformed into an enforcement role.
This PM outlines following grounds under which USCIS may issue NTAs or refer cases to ICE:
1.National Security Reasons
2.NTA Issuance required by Statute or Regulation
3.Fraud, Misrepresentation and Abuse of Public Benefits Cases
4.Criminal Cases (Including Egregious Public Safety (EPS) Criminal and Non-Egregious Public Safety (Non-EPS) Criminal Cases and N-400 Denials)
5.Aliens unlawfully present in the United States or Subject to Grounds of Removability: who receives an unfavourable decision/denial on an application or petition
6.Special Circumstances for NTA Issuance
7.Preservation of Administrative Review
8.Exercise of Prosecutorial Discretion
IMPACT OF NEW NTA POLICY ON H-1B AND OTHER DENIALS
GLF is very concerned about the likely impact of this PM on H-1B Denials. Let us consider the scenario of H-1B extensions of stay with same employer. USCIS regulations allows Beneficiaries who have filed timely H-1B extensions to continue to live and work in the United States for up to 240 days while the extension petition is pending. However, these days USCIS takes 6 to 9 months to adjudicate H-1B cases and we are seeing higher H-1B denial rates than ever before even on routine extensions. So, when an H-1B extension is denied after the prior I-94 has expired, USCIS will deem the Beneficiary as being unlawfully present and issue an NTA under the new USCIS policy.
This silent policy change will certainly mean that USCIS will divert its adjudication resources to enforcement activities thereby adding even more cases to the already overburdened Immigration Court System.
We see this policy impacting H-1B workers, F-1 students, tourists (B-1 and B-2 visitors) and other non-immigrants, as follows:
1. Applicants who applied in good faith for a change of status or extension of stay, expecting it to be granted, may under the new policy find themselves in detention and removal proceedings
2. Applicant for change of status or extension of stay, who may have been planning to depart from the United States shortly after receiving the denial, will now be instructed to await an immigration court hearing in several months and not be allowed to leave
3. Applicants who choose to leave the United States in the meantime, and are unable to return for the removal hearing, could see five-year/ ten- year bar to returning to the United States, pursuant to Section 212 (a)(6)(B) and Section 212(a)(9)(A) of the INA. Thus, the statute provides a strong incentive for denied applicants who have been placed in removal proceedings, to not to leave the United States before his/her hearing.
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