Warning: USCIS Will Place More People In Removal Proceedings

On June 28, 2018, USCIS released “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, where it laid out new policies to determine whom to place in removal proceedings. USCIS began implementing the PM for denied Forms I-485 and I-539 on October 1, 2018. Beginning November 19, 2018, USCIS may use its discretion to put people in removal proceedings if it denies the following applications:

  • I-914/I-914A, Application for T Nonimmigrant Status
  • I-918/I-918A, Petition for U Nonimmigrant Status
  • I-360, Petition for Amerasian, Widow(er), or Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile Status petitions)
  • I-730, Refugee/Asylee Relative Petitions when the beneficiary is present in the US
  • I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant
  • I-485 Application to Register Permanent Residence or Adjust Status (with the underlying form types listed above).

Basically, USCIS is trying to discourage people from affirmatively applying for these benefits. In some ways, this new policy seems to gut the intent of Congress in passing the Violence Against Women ACt (VAWA), and creating the U and T visas by deterring victims from pursuing these applications.

It is advisable for present and future applicants of the benefits listed above to obtain competent legal advice before proceeding with any applications as any small error can trigger deportation.

The agency has also noted:

If applicants, beneficiaries, or self-petitioners who are denied are no longer in a period of authorized stay and do not depart the United States, USCIS may issue an NTA.

USCIS will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns for referral for removal proceedings. USCIS has not changed to the current processes for issuing NTAs on these case types, and the agency will continue to use discretion in issuing NTAs for these cases. USCIS will not implement the memorandum with respect to employment-based petitions at this time.

More information as to how USCIS plans to implement these policies can be found in the notes from previous stakeholder calls available here.

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