In the July 2018, U.S. Citizenship and Immigration Services (USCIS) issued two new policies, both of which will have a major impact on hundreds of thousands of noncitizens applying for immigration benefits.
First, USCIS issued a new policy with regard to Notices to Appear (NTA), the charging document served on noncitizens placing them in removal proceedings. Under this new policy, as soon as an application for immigration benefits is denied, USCIS officers are required, with limited exceptions, to issue an NTA, if the individual is removable. This includes those who are no longer lawfully present at the time the application is denied.
Although USCIS has always had the authority to issue NTAs, NTA’s were routinely and mainly issued only by Immigration and Customs Enforcement (ICE). USCIS only issued NTAs in limited circumstances.
This new policy does not take away an applicant’s right to appeal a denial or request reconsideration of a denial. It does provide however, that, in such cases, USCIS will continue to review such a appeal or request during the pendency of removal proceedings. Then, if a favorable decision is made, it will notify ICE.
USCIS also issued a policy regarding its issuance of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). This new policy, effective September 11, 2018, makes it clear that immigration officers have the full discretion to deny applications that are incomplete without first issuing RFEs or NOIDs. In the past, such denials were limited to statutory denials where there was “no possibility” of approval. Due to current litigation, however, this policy does not apply to Deferred Action for Childhood Arrivals (DACA) applications.
Therefore, for example, an application can be denied, without the issuance of an RFE, where the initial application lacks a document or form that is expressly required. In such cases, because of the other newly issued policy, these individuals will more than likely be placed in removal proceedings.
These policies are expected to substantially increase the number of noncitizens placed in removal proceedings.
These recent USCIS policy changes underscore the importance of consulting with and hiring an attorney to prepare immigration applications. Mistakes, such as failing to provide a required document with the initial application, that in the past may have led only to a delayed decision can now lead to immediate denials and placement in removal proceedings.
If you or your family member needs assistance with applying for an immigration benefit with USCIS, please contact our immigration attorneys to set up a consultation.