Earlier last month, we wrote about USCIS implementing the new Notice to Appear Policy Memorandum released on June 28 of this year. According to a bulletin released late last week, the second phase of expansion is scheduled to take place November 19, 2018. On and after this date, USCIS will begin applying the new policy to the following types of applications upon denial:
- I-914/I-914A Applications for T Nonimmigrant Status
- I-918/I-918A Petitions for U Nonimmigrant Status
- I-360 Petition for Amerasian, Widow(er)
- I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant
- Special Immigrant (Violence Against Women Act) self-petitions and Special Immigrant juvenile petitions
- I-730 Refugee/Asylee Relative Petitions when the beneficiary is present in the US
- I-485 Application to Adjust Status (filed with the above forms)
Under the new policy, applicants who are out of status at the time their applications are denied may be placed into removal proceedings if they do not timely depart. In the first roll-out of the program, we saw this policy being implemented with respect to denied I-485 (adjustment of status) and I-539 applications (change and extension of status). That move alone affected a considerable portion of the immigrant population, but this expansion may prove even more consequential given its new reach. In general, many of the applications listed above are humanitarian in nature, and it is not uncommon for undocumented or out-of-status individuals to seek relief under such programs. For example, a considerable number of people who apply for U status as victims of crimes, or deferred status as battered spouses, are without legal status, and it is precisely because they have no status that these immigration-related benefits are their only course of redress. Absent special circumstances, denial of these types of applications did not ordinarily trigger referral to ICE. Under the old architecture, USCIS strictly adjudicated benefits and did not serve as an enforcement branch of the government. Denying U visa applications and then placing individuals into proceedings would only deter and chill genuine victims from reporting crimes and cooperation with law enforcement. Similarly, abused spouses of US Citizens would be reluctant to apply for relief if doing so would potentially trigger removal proceedings.
Practically speaking, the new changes will likely achieve its intended effect of dramatically curbing frivolous applications. At the same time, however, thousands of genuine applicants–whether they are victims of crimes, abused spouses, or juveniles-may be exposed to removal if their applications are denied, even if improperly or arbitrarily decided. Sadly, confronted with an increasingly callous immigration climate, many people with bona fide cases may forgo filing rather than risk deportation.
As of yet, the policy is not yet being applied to employment-based applicants, although it is likely they will be covered in the next implementation.
The above is general information only and not to relied upon as legal advice. It does not create an attorney-client relationship nor should it be relied upon in lieu of consultation with an attorney.