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Does USCIS Want to Turn Lawful Immigrants into Unlawful, Removable Immigrants? The Answer it seems, is “Yes”

The tilt in this Administration towards harsh immigration measures is well known because of high profile moves like the travel bans and the separation and incarceration of parents and young children from Central America who have sought safety in the U.S.  But a series of seemingly less significant steps that have largely flown under the radar of public notice have even bigger consequences for the fate of legal immigrants.

Each year, hundreds of thousands of immigrants who are in the U.S. legally file applications for new or different types of immigration benefits.  Up until now, if U.S. Citizenship and Immigration Services (USCIS) had questions about an application, or thought the application was missing a piece of evidence, it would send a request for additional information, giving the applicant a chance to supplement his visa application.  If USCIS ultimately denied the application, the agency sent the applicant a letter telling him that his application has been denied, informing the applicant of his appeal rights, and telling him that, if he has no other legal immigration status to fall back on, he should leave the country.

In July, 2018 USCIS has quietly issued two policy memos which overturn this non-punitive approach to lawful immigrants’ applications for immigration benefits (work visas, green cards, citizenship etc.).  On July 13, 2013, USCIS issued a Memo giving itself the right to outright deny immigration benefit applications without giving applicants an opportunity to respond to a request for additional information or a notice of intent to deny the application.  And on July 5, 2018 USCIS issued new policy guidance that mandates that the agency issue a Notice to Appear (NTA) when an application or petition for immigration benefits is denied.  This shifts USCIS, which Congress established to focus exclusively on deciding requests for immigration benefits, to immigration enforcement, a role Congress gave to Immigration and Customs Enforcement (ICE).

These new policies change the U.S. immigration landscape tremendously.  They set up a zero-tolerance approach targeting immigrants who endeavor to follow the rules and timely file proper immigration applications.  With this new approach, if someone’s status lapses for even one day, (even if the government’s denial was unjustified, and will be overturned on appeal), the person will likely be issued an NTA.

An immigrant who receives an NTA faces a complete jurisdictional shift to the immigration court system and must appear in immigration court to defend against the charge of being in the U.S. illegally and therefore subject to removal.  Defending immigration removal is entirely different than seeking affirmative, legal immigration benefits and untenable for many highly-skilled, professional foreign nationals in the U.S. who are trying to maintain their lawful status.  Immigration courts are already severely backlogged, with scheduling of hearings taking years.  Failure to attend the hearing carries extremely harsh penalties, far disproportionate to many underlying circumstances.  For example, those whose applications are denied and respond by following the path of least resistance, and leaving the U.S. (which is the case with the majority of people in this situation) face a 5-year bar on returning to the U.S. if they received an NTA but were out of the country at the time of their hearing.  The cruel irony is that if they receive an NTA, they can’t just leave without facing a severe penalty.

As a result of these July, 2018 policy changes, there are a large variety of circumstances in which well-meaning lawful immigrants will find themselves on the receiving end of an NTA.  Examples of scenarios which could now trigger an NTA include:

  • Applicants who timely file applications to change from work visa to student visa status; or vice versa, whose applications are wrongly denied, leaving them without an underlying status;
  • High skilled workers whose employment-based visa extension or green card petitions are wrongly denied;
  • Visa applicants who timely filed applications while in status, but fall out of status because USCIS takes too long to make a decision on their applications;
  • Foreign students whose schools make a mistake in their student visa documents or records, or who drop below the required course level;
  • Permanent residence applicants whose applications are incorrectly denied

These new USCIS policies are  cruel, unprecedented and unnecessary.  This punitive approach will stigmatize and unnecessarily harm thousands of well-meaning lawful immigrants, and it will cause a very large increase in immigration litigation and clog the already-burdened immigration courts.

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Susan J. Cohen

Member / Founder and Chair Emeritus, Immigration Practice

Susan J. Cohen is Chair of Mintz's Immigration Practice and a nationally recognized Immigration lawyer. She helps corporate clients manage immigration challenges. Susan is an American Immigration Lawyers Association (AILA) member and she's contributed to state and federal immigration regulations.