New USCIS Policy Will Increase Number of Deportation Cases

Published 10.5.2018

On June 28, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a new Policy Memorandum directing USCIS officers to initiate removal/deportation proceedings against individuals who apply for certain immigration benefits and whose applications are denied. USCIS began implementing this policy on October 1, 2018.

Who is affected by the new policy?
Under the new policy, USCIS will issue a Notice to Appear (NTA) to initiate removal proceedings for individuals whose applications to obtain immigration status are denied. The underlying denied application must seek an actual immigration status, such as the I-485 Application to Adjust Status to permanent residence (green card applications) or I-539 Application to Change or Extend Nonimmigrant Status, among others. If the application is denied, USCIS will issue the NTA if the applicant has no other lawful immigration status and the denial of the application would cause him/her to be unlawfully present in the U.S.

USCIS has indicated that, at this time, the new policy will not be implemented for employment-based petitions, such as I-129 Petitions for Nonimmigrant Worker or I-140 Immigrant Petition for Alien Worker.

Will ​USCIS issue the NTA even if the applicant has no criminal record or negative history?
Yes. Under the new policy, USCIS will issue the NTA to any applicant whose qualifying application is denied and who has no alternative immigration status to fall back on, even if that individual has no criminal record, has paid income taxes, has a family in the U.S., etc.

Will USCIS provide applicants an opportunity to provide additional evidence before denying the application?
USCIS may, but it is not required to, provide applicants an opportunity to supplement their applications before denying them. Up until September 11, 2018, USCIS was required to issue a Request for Evidence in most case where a particular document or piece of evidence was missing, to allow the applicant an opportunity to fix the mistake or provide additional information. As of September 11, 2018, when a new RFE policy took effect, USCIS can deny an application with no advance notice or opportunity to cure the defect.

If an application is denied, will USCIS start deportation proceedings immediately?
Generally, no. Pursuant to information provided by USCIS during a recent stakeholder teleconference on September 27, 2018, USCIS will not issue the Notice to Appear immediately upon denial of an application. Instead, USCIS will generally allow the applicant an opportunity to file an appeal or a motion to reconsider or reopen. These actions must usually be done within 33 days of the denial, although some may have a shorter deadline. USCIS will wait for the expiration of these deadlines to pass and, if the applicant does not file an appeal or motion or depart the U.S. within that period, then USCIS will issue the NTA. Some exceptions will apply, to be determined on a case-by-case basis.

If I re-file the application after it is denied, will USCIS still issue the NTA?
It depends. When an application denial was caused by a missing document that can be easily provided, it is sometimes recommended to simply re-file the entire application instead of filing an appeal or a motion to reconsider the denial. However, unlike appeals and motions to reopen/reconsider, there is no statutory deadline to re-file an application. USCIS has indicated that it would wait until the statutory deadline to file an appeal or a motion passes before issuing the NTA. Therefore, even if re-filing an application may not have the same (or any) deadlines, it is recommended to re-file the application as soon as possible upon denial, but no later than the statutory deadline for any available appeal or motion applicable to your case.

What other types of cases will trigger USCIS to issue the NTA?
USCIS will also issue NTAs and initiate removal proceedings for applicants who have engaged in fraud or misrepresentation; applicants who abused any program to receive a public benefit; applicants who are convicted of a criminal offense; applicants who are only charged with a criminal offense, even if the charge is still pending and the applicant has not yet been convicted; applicants who committed acts that constitute a criminal offense, even if no criminal charges were filed; and others as detailed in the Policy Memorandum.

USCIS will maintain the NTA-issuing authority it had prior to the new Policy Memorandum as well, which includes certain asylum applications and denials of Petitions to Remove Conditions of Residence, among others.

If you have any questions regarding the new USCIS policy or any other immigration-related matters, please do not hesitate to contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or (608) 252-9291.