On June 28, 2018 United States Citizenship and Immigration Services (USCIS) issued new guidelines for the Notice to Appear (NTA), form I-862. An NTA is a document issued to a foreign national instructing them to appear before an immigration judge where removal proceedings may result.
In the past, Immigration & Customs Enforcement (ICE) would handle NTAs, but under the new guidelines, USCIS officers will be given the authority to issue NTAs. This is a big shift, since USCIS customarily focuses on judging immigration benefits and welcoming immigrants to the US, while ICE handles immigration enforcement. However, ICE will still have the authority to handle NTAs, as well USCIS and the United States Customs and Border Protection (CBP).
Francis Cissa, USCIS Director, explains the reasoning behind the new guidelines, “For too long, USCIS officers uncovering instances of fraudulent or criminal activity have been limited in their ability to help ensure U.S. immigration laws are faithfully executed. This updated policy equips USCIS officers with clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it.”
Under the new guidelines, USCIS is required to issue an NTA in category cases where the individual is removable including instances where a petition or application has been denied and an I-94 has expired. The variety of cases include:
• Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.
In addition, the revised policy will not change the current category of cases for issuing an NTA:
• Cases involving national security concerns;
• Cases where issuing an NTA is required by statute or regulation;
• Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
• DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.
With the new guidelines, the American Immigration Lawyers Association (AILA) has some strong words. President of AILA, Anastasia Tonello states, “The new guidance will have a chilling effect, discouraging people who are eligible for immigration benefits from applying out of fear that they will be tossed into the deportation machine if they are denied – even if that denial is due to an agency mistake. It is based on the false assertion that everyone who comes to the United States and seeks an immigration benefit intends to break the law by overstaying if they are denied, when the vast majority comply on their own.
"As a result, USCIS will now needlessly sweep tens of thousands of individuals into removal proceedings, including those who have lived and worked lawfully in the U.S. and would otherwise seek appellate review or depart voluntarily if their application is denied."
"This could include workers who have fully complied with our immigration laws who may unexpectedly be informed by USCIS that they no longer qualify for the visa status they have legally held for years and will now be placed in removal proceedings. This policy erases the ‘Service’ from USCIS and transforms the agency into yet another DHS enforcement tool.”
By Ivy Bejarano-Cuellar, Law Clerk
Ivy Bejarano-Cuellar (J.D. Candidate, 2020) is a Law Clerk with KNG Law in Houston, Texas. Ivy focuses on supporting the firm's employment-based immigration matters.