Policy Alert: USCIS Will Issue More Foreign Nationals Notices to Appear in Immigration Court

Last week, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance that changed the agency’s policy regarding which foreign nationals will be issued Form I-862, Notice to Appear (NTA). An NTA is issued to begin removal proceedings against an individual and instructs them to appear in front of an immigration judge for a hearing. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) also have the authority to issue NTAs. According to a USCIS news release, “officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

Purpose of USCIS Updated Guidance

This new guidance is intended to update USCIS procedure in accordance with Department of Homeland Security immigration enforcement priorities under President Trump. These priorities were defined in Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which was issued on January 25, 2017. The Executive Order states, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement…. It is the policy of the executive branch to ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens.” In a significant change from immigration enforcement under President Obama, the Executive Order states that the government will no longer exempt specific classes or categories of removable aliens from potential enforcement and removal.

Categories of Removable Individuals

Although all removable individuals are subject to immigration enforcement, the policy memorandum specifies that the following categories of individuals should be issued NTAs:

• Aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4), to include aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal; and
• Aliens who, regardless of the basis for removal:
  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved;
  • Have committed acts that constitute a chargeable criminal offense;*
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal, but have not departed; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

*A footnote indicates that chargeable criminal offenses include those defined by state, federal, international, or appropriate foreign law.

Expert Concerns Regarding the Updated Guidance

Unlike immigration policy under President Obama, the prioritized categories are no longer ranked, but are presented as being equally important. According to an analysis from the American Immigration Lawyers Association (AILA), “because it includes those who merely committed an act that could be charged as a crime, all those who entered without inspection become priorities because illegal entry is a crime under 8. U.S.C. §1325.” By targeting individuals who have been charged with a crime but not convicted, the new guidance also undermines the fundamental premise that individuals are innocent until proven guilty. AILA states that these new policies are “reshaping immigration enforcement in a way that is antithetical to American values and our country’s historical commitment to justice and due process.”

These policies will significantly increase the number of individuals who are targeted for removal, which AILA predicts will worsen the existing problems in immigration courts—currently more than 700,00 cases are already backlogged in immigration court. NTAs mark the beginning of immigration court proceedings, so this guidance will likely continue to overload immigration court dockets and strain government resources.

AILA also warns that the new USCIS policy mandates that “NTAs be issued to every person who is ‘not lawfully present’ in the United States at the time an application, petition, or request for an immigration benefit is denied,” except in very limited circumstances. This includes individuals who were denied due to government error, would otherwise have appealed the decision but are discouraged from doing so after receiving an NTA, or who would have willingly left the U.S. after receiving a denial.

What About DACA Recipients?

DACA recipients and requestors are a notable exception to the new guidance. In a concurrently released policy memorandum, USCIS specifies that “Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.”

The updated USCIS policy guidance represents a significant shift in the agency’s role in immigration enforcement and priorities, and removable individuals who were not priorities for deportation under previous guidance should be aware of how these changes will impact them. If you are concerned about how this may affect your immigration status and ability to remain in the U.S., please reach out to our attorneys to schedule a consultation.

I have been denied a B1/B2 visa on two occasions pursuant to INA § 214(b). How can I overcome INA § 214(b), so that I can attend my friend's wedding in the United States?

Question:

Dear SRW Border Lawyers,

From 2009 to 2010, I was in the United States on a J1 visa. I returned to my home country when the internship ended. I returned to the United States again with another J1 visa from 2011-2012. I returned to my home country in June of 2012 and graduated from college.

My best friend lives in the United States and she is planning on being married in 2013. In August of 2012, I applied for a B1/B2 visitor visa to help her organize her wedding and to travel the United States for a short time (while I was in the United States on my J1 visas, I did not get an opportunity to travel). At the visa interview the consular officer denied my application due to INA § 214(b). I was told to try again at another time once I was able to provide evidence of stronger ties to my home country.

A few weeks later, my sister wanted to go to New York City and asked me to go with her. I applied for another visa, but this time I brought more evidence of stronger ties. I was denied again pursuant to INA § 214(b).

While I do not much care about visiting New York City, I do not want to miss my best friend’s wedding late next year. I was really put off about ever applying for another visa again from this one Consul, and I am hoping that whatever was written in my file is not so severe that it would affect my ability to get a visa to visit the United States, especially as I have not done anything illegal.  

What advice would you give on how I can strengthen my ties to my home country so that I can travel to the United States for my friend’s wedding?

Answer:

Thank you for your question. You indicate in your email that you were denied pursuant to INA § 214(b). INA § 214(b) states:

“Every alien…shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) .”

In essence, INA § 214(b) is a presumption that all visa applicants are intending immigrants, unless they are able to establish to the satisfaction of the consular officer or immigration officer that they are entitled to the nonimmigrant visa that they are applying for. The 214(b) analysis is two-part: (1) can the visa applicant prove that they have strong enough ties to their home county, and (2) is the applicant eligible for the visa that they are applying for.

Based on your email, it appears that you were unable to establish strong ties to your home country. Evidence of “strong ties” can be documented in various ways. Some of the more common evidence submitted with a visa application include: mortgages, leases, utility bills (gas, electric, cable, internet), employment letters, and insurances (home, car). Thus, if you are unable to provide such information at this time, you will want to take steps to begin to develop those ties. For example, begin renting an apartment, or put utilities in your name. Young adults are at a disadvantage when it comes to proving ties, since they most likely have not established themselves (i.e. purchased a home, been employed for a considerable amount of time by the same employer).

In addition, from the information you have provided in your question, I also believe that your previous time in the United States in J1 status was working against your B-1/B-2 visa applications. For example, prior to your first visa interview, you had just returned to your home county after spending a significant amount of time in the United States. Your second attempt, which was shortly after your first, still did not allow for a significant passage of time since returning to your home country. Thus, based on your presumptive lack of strong ties to your home county and your previous time in the United States in J-1 status, the Consular Officer was not persuaded that you would return home following your visit to the United States and denied your application.

Simply put, you will likely have to wait before applying for a visitor visa. In the meantime, however, you should begin to develop ties to your home country so you can overcome INA § 214(b). Once you have developed significant ties, please contact our office so that we can further assist you with the preparation of your visa application.