Threats to Non-Immigrant Workers: USCIS Gains Deportation Referral Power

Recently, the United States Customs and Immigration Service (USCIS) released a policy memo endowing every adjudicating officer, and all USCIS employees, the power to issue a notice to appear, or NTA. With this policy change, USCIS employees may now initiate the removal and deportation of an individual that does not maintain lawful presence.

Background

Although USCIS has always maintained the power to issue an NTA, previous procedures required USCIS employees to make written recommendations for removal notices to the United States Immigration and Customs Enforcement (ICE) for certain instances of unlawful presence. However, following the Executive Order Enhancing Public Security in the United States in 2017, the Department of Homeland Security (DHS) altered many immigration related priorities. In adherence to the new DHS standards, the policy memo now allows a more streamlined and swift deportation process. For both foreign nationals and employers, this policy memo can spell big trouble during renewal processing.

 Major Changes

In addition to retaining it’s previous NTA procedures, USCIS will now issue NTAs for any of the application situations listed below, without the need to process the request through ICE.

• Instances of reasonably suspected fraud or misrepresentation, including if an applicant misused any program related to the receipt of public benefits. (Regardless if the case is denied for reasons other than fraud, USCIS will initiate a removal request);
• Instances of a criminally convicted or charged applicants, regardless if inadmissibility was determined by criminal record. (USCIS may also refer cases involving serious criminal activity to ICE before USCIS issues a denial of immigration benefits or NTA);
• Instances in which USCIS denies an application for naturalization, on good moral character grounds because of a criminal offense; and
• Instances of an unfavorable decision on an application, petition, or benefit request, in which the foreign national is not lawfully present in the United States.

Appeals & Consequences

Many foreign nationals at the mercy of the extreme backlogs encumbering USCIS face unlawful presence while waiting for an application decision. Under this new policy memo, these individuals are now at greater risk of deportation. Although aliens may appeal an NTA, the risk involved leaves many employers wary of hiring new foreign national employees or approving renewal requests. If you have any concerns about your lawful presence and or whether the policy memo effects you, please do not hesitate to call our office to schedule a consultation.