Implementation of USCIS's New Policy on Notices to Appear Memorandum Postponed

August 6, 2018

U.S. Citizenship and Immigration Services (USCIS) recently issued a new policy memorandum, dated June 28, 2018, in which it updated its guidelines for issuing Notices to Appear (NTAs). Due to concerns of the economic impact of the guidelines, USCIS announced a postponement to the memorandum's implementation on July 30, 2018.

USCIS has historically been in charge of processing benefit applications. As such, the agency typically referred issues of failed benefit applications to U.S. Immigration and Customs Enforcement (ICE). However, these new guidelines significantly expand USCIS's power to issue NTAs. Because issuance of an NTA marks the beginning of deportation proceedings by calling on the noncitizen to appear in immigration court, the memorandum effectively turns USCIS into another immigration enforcement agency, like ICE and U.S. Customs and Border Protection.

These new guidelines are troubling for a number of reasons. For one, the massive backlog of immigration courts nationwide is already well over 700,000 cases and the average wait time for a court date is almost two years. This memorandum will almost certainly increase that backlog. Further, the guidelines state that "prosecutorial discretion to not issue an NTA should only be exercised on a case-by-case basis after considering all USCIS and DHS guidance, DHS's enforcement priorities, the individual facts presented, and any DHS interest(s) implicated." Even then, the new guidelines mandate that prosecutorial discretion will be subject to a review panel, so use of prosecutorial discretion to not issue NTAs is unlikely.

The guidelines also state that "USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the U.S." This affects a broad range of cases, including those holding work and student visas. For example, H-1B and student visa holders will be issued NTAs if USCIS determines they have fallen out of status under their visas while waiting for USCIS to review their applications for extension or change of status. Additionally, those issued an NTA and placed in deportation proceedings will be subject to a five-year bar from re-entry and will be unable to work while their case is pending. Those who leave the United States after being issued an NTA may also be issued an absentia order of removal.

Due to the potentially enormous impact on the economy, the business community and the U.S. Chamber of Commerce expressed numerous concerns over the substance and lack of notice of the memorandum, requesting USCIS to postpone implementation of the new guidelines to avoid economic harm they will cause.

On July 30, 2018, USCIS acquiesced to those requests, stating "issuance of the operational guidance is pending; therefore the implementation of [the June 28 policy memorandum] is postponed until the operational guidance is issued." For now, we remain hopeful that USCIS will reconsider and bear in mind comments from the business community and the American Immigration Lawyers Association before finalizing operational guidance on NTA issuance.

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