As reported in a prior post, on June 28, 2018, U.S. Citizenship and Immigration Services (USCIS) announced a new policy under which it would assume a power normally delegated to Immigration and Customs Enforcement (ICE), the agency charged with interior enforcement of U.S. immigration laws. Under the new policy USCIS would have vastly expanded power to issue the Notice to Appear (NTA) initiating proceedings to remove from the U.S. noncitizens who have applied to USCIS for permanent residency or nonimmigrant status.
After postponing implementation of the new NTA policy in July, the administration announced on September 26, 2018 that it will take effect on October 1, 2018. The announcement states that implementation will be incremental and will apply at the outset to I-485 applications (applications for permanent residency) and to I-539 applications to extend or change nonimmigrant (temporary) visas, such as a visitor requesting to stay longer, or to change to a student visa to study at a U.S. university. USCIS says it will not yet apply the new policy to humanitarian petitions or employment-based applications.
Since employment-based applicants for immigration benefits typically have legal representation, as a practical matter, this new policy is likely to disproportionately be applied to immediate family immigrants who often file their applications without a lawyer and can make innocent mistakes as a result.
Coupled with a new policy that took effect on September 11, 2018 directing USCIS employees to deny applications that may be incomplete or have an error, instead of requesting more information as was the prior practice, the new NTA policy will result in many more people ending up in removal proceedings. In many cases, they will be able to apply again in front of the immigration court, but their immigration process will be much longer, more complicated, more burdensome emotionally and financially, as well as more costly to U.S. taxpayers.
The new NTA policy continues this administration’s disturbing trend towards “zero tolerance” and a heightened enforcement mentality, even towards those who have the legal right to apply to remain in the U.S.