A new U.S. Citizenship and Immigration Services (USCIS) policy published on July 5, 2018 instructs USCIS officers to issue a notice to appear (NTA) to any individual who is “not lawfully present” in the United States at the time his or her immigration benefit is denied. An NTA is a document issued to a foreign national when the government determines that the foreign national is removable from the United States. The issuance of an NTA marks the commencement of removal proceedings (commonly referred to as deportation proceedings) and requires the foreign national to appear before an immigration judge.

The new policy, which is already in effect, is expected to impact a broad range of immigration cases. For example:

• A person with an H-1B visa will be issued an NTA and placed in removal proceedings if his or her application for an H-1B extension is denied and his or her underlying H-1B visa expired while waiting for USCIS to review their application.

• A person with a student visa will be issued an NTA and placed in removal proceedings if, while adjudicating the student’s request for an immigration benefit such as an extension or change of status, USCIS determines the student has fallen out of status under his or her student visa and is thus unlawfully present.

This new mandate updates the 2011 policy that established the initial guidelines that USCIS used for issuing NTAs and brings the policy into closer alignment with President Trump’s executive order dated January 25, 2017, by placing a greater emphasis on the enforcement of federal immigration laws. Under the earlier version, USCIS was seen as the more service oriented branch of the U.S. Department of Homeland Security, leaving U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection to handle a majority of the immigration enforcement efforts. In many instances, USCIS was only responsible for referring questionable cases to ICE, which would then make the ultimate determination as to whether or not to issue an NTA. The new guidelines, however, not only require USCIS officers to issue NTAs directly, they virtually eliminate the officer’s discretion to do otherwise.

Key Takeaways

The new guidelines are likely to result in the initiation of scores of new deportation proceedings, potentially affecting even those who have lived and worked in the United States legally for years. It is unclear how the already overburdened immigration courts will absorb the influx of new cases when, as of May 2018, the courts were reporting a backlog of approximately 700,000 cases and a nationwide shortage of immigration judges. At a minimum, processing times are expected to lengthen.

Individuals subject to an NTA should be aware that they must appear before the immigration judge at the date and time specified in the NTA. Those tempted to self-deport and return to their home country before their court dates may be removed in absentia by an immigration judge. Such a removal will, in turn, limit the foreign national’s ability to seek relief from removal and will significantly impact his or her access to immigration benefits in the future.