Update: On July 30, 2018, USCIS delayed implementation of its new NTA policy, discussed below, while it develops operational guidance. The new policy expanding USCIS’s authority to deny incomplete applications is still slated to go into effect on September 11, 2018, however.
In 2002, Congress divided the former Immigration and Naturalization Service into three parts with separate missions. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) were charged with border and interior enforcement, and U.S. Citizenship and Immigration Services (USCIS) was to provide services to citizens and noncitizens alike, including offering information and processing applications for work permits, nonimmigrant visas or other temporary statuses, permanent residency, and U.S. citizenship.
Recent policy changes by the current administration are subverting USCIS’s service role and turning it into an enforcement agency.
- USCIS is given green light to initiate removal proceedings.
On June 28, 2018, USCIS issued a policy change broadening when it will issue a Notice to Appear (NTA), the document that initiates proceedings to remove a person from the U.S. In the past, if USCIS denied an application for an immigration benefit, it ordinarily would refer the case to ICE to determine if NTA issuance was warranted. USCIS itself only issued the NTA in very limited circumstances, such as if it deemed the application to be fraudulent, or that the applicant had criminal convictions or presented a security risk.
Under the new policy, USCIS can issue an NTA against any person who is out of status when it denies a petition. For example, the visa of an H-1B professional who timely filed for an extension may expire during the time it takes USCIS to decide the application, due to long processing backlogs. Prior to the new policy, if the extension were denied, the former H-1B professional could leave the U.S. and apply for a new visa from abroad. Under the new policy, s/he could not leave without first appearing before an immigration judge. Nationwide, the immigration courts are buckling under the strain of over 700,000 pending cases, with it taking years to get a hearing. The denied H-1B worker is required to wait for a hearing before being able to leave the U.S., but will not have legal permission to work during that wait.
For a more detailed discussion of how harmful this new policy will be in practice, read this piece in Forbes.
- USCIS has new authority to deny applications that are not 100% complete when filed.
Immigration is extremely complex. It is not uncommon for someone to omit a required document when filing an application with USCIS, such as a submitting a foreign language birth certificate without also including a properly certified translation of it into English.
Under long standing policy, ordinarily if any required documents are missing from an application, USCIS will send the applicant a Request for Evidence (RFE). In cases where it appears to USCIS that the person is not eligible for the benefit sought, the agency will issue a notice of intent to deny the application, giving the applicant 30 days to respond.
On July 13, 2018, USCIS announced a new policy, to take effect on September 11, 2018, authorizing USCIS to simply deny incomplete applications in most cases. Applicants will no longer have a chance to supplement their applications. Not only would they lose their application filing fees if they have to start all over, but if they are then out of status, for example because their visa expired between the time they filed their application and USCIS issued its denial, they in most cases will be ineligible to simply refile a corrected application. Moreover, coupled with the new NTA policy discussed above, USCIS can initiate removal proceedings against the individual along with its denial.
What is the impact of these policy changes?
These changes take direct aim at those trying to follow the law and obtain immigration benefits legally. It is extremely likely that many noncitizens already working for U.S. employers who are filing to extend their temporary work visas or to apply for permanent residency will have their applications derailed as a result of these two policies, resulting in losing their ability to work and being subjected to prolonged, complicated, and prejudicial removal proceedings. Those seeking residency through immediate family members or naturalization also will be adversely affected.
Immigration law is extremely complex, and it is easy for a person to be out of status. Some examples include: a student visa holder who drops below a full course load for one trimester; a person who files for an extension of stay whose visa expires while that application is pending; a temporary worker who falls in love with and marries a U.S. citizen and remains in the U.S. after the seasonal work ends in order to file for residency based on the marriage. Under the new policies, all of these individuals, if they file incomplete applications, would now have their applications denied outright, resulting in USCIS issuing an NTA placing them in removal proceedings.
Removal proceedings are the most costly (for the noncitizen and for U.S. taxpayers alike) and least efficient way to process individuals who may legally have the right to remain or return to the U.S. with a new temporary or permanent residency visa.
These changes will disrupt employment relationships and lead to family separations. Cases that could have been resolved administratively may take years to resolve in the immigration court. The new policies will create a chilling effect on noncitizens, causing them not to go to USCIS to seek information or even to apply for immigration benefits for which they may be eligible.
At a time when the country needs more, not less, immigrants to help our economy and communities thrive, these changes take our country in the wrong direction.