A recent policy memorandum issued by the Department of Homeland Security (DHS) has sent shock waves through the legal profession and set a new blaze under US immigration policies.
The June 28, 2018 memo is a partial implementation of President Trump’s 2017 Executive Order, Enhancing Public Safety in the Interior of the United States, which seeks to ramp up immigration enforcement measures by targeting more immigrants for deportation.
Removal proceedings and deportation
To this end, the new DHS policy significantly expands the types of cases under which an individual can be issued a Notice To Appear (NTA), and referred to immigration court for removal proceedings and deportation from the U.S.
Generally, when an immigrant is deemed deportable, he or she is issued a Notice To Appear (NTA), which is a notice to the immigrant that he or she has been placed in Removal Proceedings and must appear in immigration court at a date and time to be announced.
Significantly broaden range of cases
The new guidance significantly broadens the range of cases under which an individual can be deported from the U.S. and encourages immigration officers to do so whenever possible. While most of the memo is focused on illegal immigration, and the issuance of NTA’s to those with criminal, fraud or abuse of public benefits violations, the most explosive provision directs the issuance of NTA’s to applicants who have been denied any immigration benefit and who are ”unlawfully present” in the U.S. at the time of denial.
“V. Aliens Not Lawfully Present in the United States or Subject to Other Grounds of Removability, 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 United States.”
Unlawful presence is the presence in the U.S. after the expiration of the period of stay authorized by the DHS upon entry to the U.S., or having entered the U.S. illegally.
Any immigration application can be denied
Under this new directive, the USCIS aims to put every individual who files any kind of immigration application and a denial is issued by the USCIS after the applicant’s period of stay (I-94) has expired into deportation. This covers an extremely wide range of circumstances, including even those who are in legal immigration status but who file non-immigrant change or extension of status applications. This would include F-1 student visas, H-1B or L work visas, E-2 investor visas, etc, whose period of stay of stay has expired by the time a denial is issued in the case, causing them to fall into a period of “unlawful presence“ during processing of the application.
Simply said, anyone who has an extension or change of status denied after that individual’s I-94 expires will be issued an NTA and referred for deportation from the U.S.
For example, Maria from Venezuela is here in the U.S. on a tourist visa and when she arrived in the U.S. the officer gave her six months to stay. After several months, she decides she wants to attend English language school and applies for an F-1 visa to change her status to a student, while she is still in legal status. However, due to ever increasing USCIS processing times for student visa applications, taking up to a year in some circumstances, if Maria remains in the U.S. awaiting approval of application, she will go over her period of stay. If she does stay and the F-1 visa is later denied, she would be issued an NTA and be deportable from the U.S.. Her U.S. visa would automatically be cancelled and when she leaves the U.S., she would likely be unable to return for many years.
Similarly, Matthew is here in the U.S. from Jamaica, working on a valid H-1B work visa. His work visa expires in two months and his employer has filed a renewal on his behalf. However, since USCIS processing times can take six months or more, if he receives a denial on the H-1B extension, he too will be deportable from the U.S.
In another example, Marcia, from Trinidad is here on vacation visiting her aunt and received a six month stay when she entered the U.S.. She and her aunt have plans to visit New York, Washington and some other national sites of interest, so she decides to extend her stay in the U.S. a few more months. Once she has been here for five months, she files a request with the USCIS to extend her stay for an additional three months. But since it can take up to a year for the USCIS to process her request, she gets stuck here waiting for a decision. If she leaves the U.S. before she receives a decision, she will have overstayed her time here and her U.S. visa will automatically be cancelled. On the other hand, if she stays here waiting for a decision and she is denied, not only will her U.S. visa be cancelled, but she will become deportable as well.
Enormous ramifications
The ramifications are enormous, and these are the nightmare outcomes which will likely result from the new USCIS policy. The message from the Trump administration is clear, if you are an immigrant, we don’t want you here and we will do everything possible thwart your efforts to maintain legal status- at every opportunity! As a result, visitors to the U.S. must be extremely cautious about filing any application to change or extend status and those here in the U.S. on valid work or investment visas must protect their status by filing for renewals as early as possible and use 15-day expedited processing whenever possible.
