Update: U.S. Citizenship and Immigration Services (USCIS) has issued guidance that requires the agency’s officers to initiate removal proceedings by issuing Notices to Appear (NTAs) for a broad variety of infractions. The new policy directs USCIS officers to issue an NTA in cases where they suspect removability on criminal grounds, fraud, receipt of public benefits, or in any case where the officer deems that a foreign national is subject to any ground of removability. The policy includes an NTA directive in cases where, as a result of an unfavorable decision issued by USCIS, a foreign national who was previously lawfully present, is no longer able to remain in the United States. Limited exceptions to the new NTA policy guidance include Deferred Action for Childhood Arrivals (DACA) recipients. The policy will go into effect immediately notwithstanding a lack of training or process for USCIS issuance of NTAs or referring cases to ICE.
Analysis: The policy guidance adds a new enforcement responsibility to USCIS officers whose primary role has historically been to adjudicate immigration petitions and applications. We find the immediacy of the enforcement action concerning, as USCIS officers are not trained in enforcement actions or NTA issuance and a procedure for issuing NTAs and referring cases to ICE does not exist at this time. Moreover, since USCIS processing times for all petition and application types have increased considerably along with denial rates, we expect that this will make the appeal and/or refiling process more challenging.
We will continue to monitor trends related to this new policy guidance. If you have specific questions about the impact of this guidance on your case, please contact us.