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Traditionally, USCIS is in charge of granting applications for legal immigration status, while ICE enforces immigration law, including orders related to deportation. These two functions have generally been kept distinct. The idea is that someone with a chance to confirm their legal status should be able to do so generally without fear that a negative decision or mistake could result in deportation. No more. Late last week USCIS released a policy memo that which coupled with another recent memo, collapses the wall between the two functions such that the processing of visas and citizenship applications is now deeply connected to the efficient production of deportation orders.
At first glance, these memos may appear to be bureaucratic with minimal consequences. However, when read together, the two memos will illogically place people in deportation proceedings for errors that could easily be addressed through other means, clog the immigration courts with low priority deportation cases, limit fairness and due process, and raise costs for the government and applicants for immigration benefits.
July 13 Memo: Issuance of Certain RFEs and NOIDs
The most recent memorandum, issued on July 13, appears aimed at individuals, families & employers playing by the rules who are applying for immigration benefits, including citizenship, green cards and family – and employment-based visa petitions. This could include petitions by U.S. citizens for spouses and minor children or U.S. employers trying to bring a top researcher to to the U.S. in the national interest. Buried on page 3 of the memorandum, in a section labeled “Denials Based on Lack of Sufficient Evidence,” USCIS bureaucrats are given the green light to deny immigration benefit requests outright, without issuing a Request For Evidence (RFE) or a Notice of Intent to Deny (NOID).
For many years, USCIS has been using RFEs and NOIDs for cost and resource efficiencies for both the government and the applicant and to ensure due process. It gives the applicant the opportunity to correct an application error caused either by the government or the applicant without having to go through an entire re-application with a new fee. For example, many immigration attorneys report that RFEs are issued for required evidence that was, in fact, included in the initial filing, but was missed by a USCIS adjudicator. An RFE allows the applicant to submit that evidence again or explain to the adjudicator that the evidence was already included in the original filing.
With this new memo, adjudicators are authorized to outright deny applications for errors, even simple ones, thereby denying due process and creating inefficiencies for the government and the applicant, who will be forced to reapply with a new fee or request a motion to reopen due to USCIS error, which is costly for USCIS. Furthermore, when an application is denied, that individual loses their place in line and has to go to the back of the line upon re-application. For many visa programs that have a long line or an annual cap, which could mean waiting much longer for a visa for what may be simple or technical errors.
June 28 Memo: Updated Notice to Appear Guidance
Three weeks ago, USCIS issued another policy memo that requires USCIS to initiate deportation hearings for most denied an immigration request made to USCIS where the applicant, beneficiary, or requestor is removable and even where there is an appeal. There are no exceptions – not even for for people who who may be victims of trafficking, victims of abuse, or family members of U.S. citizens and even for simple government or applicant errors that prior to the above July 13 memo would have resulted in an RFE or NOID.
Practically, this means that many more people who were, prior to the July 13 memo, issued RFEs or NOIDs for correctable problems in their applications will find themselves mired in the deportation process through the June 28 memo.
For example, a U.S. citizen woman may apply for a green card for her undocumented husband with whom she has four (4) U.S. citizen children. If her husband has been undocumented in the U.S. for a year or more, he would generally be barred from a green card for 10 years. However, he may obtain a green card sooner, if he can show that his U.S. citizen wife will suffer “extreme hardship,” if he returns home to obtain his green card and is not permitted to return for 10 years. Under the July 13 memo authorizing denials without RFEs and NOIDs, USCIS may outright deny the application even for a simple technical error and require the family to start over with a whole new application fee. And under the June 28 NTA memo requiring USCIS to initiate deportation hearings for denials, where a person is removable like in this case, the family’s situation becomes dire: for what could be a simple technical error under the July 13 memo, the husband and spouse of a U.S. citizen could find themselves mired in the complex deportation process under the June 28 memo.
The coupled effect of the June 28 and July 13 memos also applies to those who have current visa status and may be legally working or studying in the U.S. As described in a recent interview with an immigration attorney, published in Forbes:
Anderson: Can this happen to an H-1B professional whose employer files for an extension?
Minear: Yes. Many H-1B professionals whose petitions for initial or extended H-1B status are ultimately denied are likely to be placed into deportation proceedings under this policy.
Anderson: What will happen to the careers of individuals placed into deportation proceedings? Are people even allowed to work and support themselves while waiting for their immigration court appearance?
Minear: The consequences could be extreme because almost all people in removal proceedings are unable to obtain legal authorization to work. While the individual would be free to appeal a denial of the visa petition or other application that resulted in them being placed into removal proceedings and that may ultimately result in their status and employment authorization being reinstated and their deportation proceedings terminated, there is no work authorization generally available to those who are awaiting the conclusion of removal proceedings.
For most people, being placed in proceedings is a legal limbo where you are not lawfully present, yet not able to leave without triggering a bar on re-entry, and not able to work legally.
As a result of these two memos, individuals, who were once able to correct simple errors through RFEs and NOIDs, will be stuck defending themselves in deportation hearings for years without work authorization with severe consequences, if they choose to abandon their applications and return home instead of enduring the deportation process. The Forbes interview explains this perfectly:
Minear: Previously, if an application or petition for immigration benefits were to be denied, the foreign national might be able to depart the U.S. relatively quickly and either remain abroad or obtain approval for another visa that would enable him or her to return to the U.S. However, once an individual is issued a Notice to Appear [under the June 28 memo], he or she is legally obligated to remain in the U.S. and appear before an immigration judge.
Anderson: What happens if an individual fails to appear?
Minear: If the person fails to appear in immigration court in compliance with the Notice to Appear, then a deportation order will be issued against the person. The failure to appear for removal proceedings carries a 5-year bar on re-entry to the United States. While it would be possible to apply for a waiver of that bar, there is no guarantee that the waiver would be granted. Having been previously ordered deported from the U.S. is likely to hamper one’s chances of being approved for another visa to return.
On the other hand, if the individual does remain in the U.S. to contest the removal proceedings – a process that could take years to complete due to the backlogs in immigration courts – he or she is considered “unlawfully present” during all of that time. If the individual prevails in the removal proceedings, his or her status will be restored and the unlawful presence will be wiped away. But if the individual loses, he or she will likely be subject to a 10-year bar on re-entering the U.S., depending on how much unlawful presence accrued by the time the final deportation order was entered.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “Amid the family separation crisis caused by the Trump administration, USCIS is methodically issuing memos that will trap many immigrants and their U.S. citizen families and employers into deportation, many who are simply trying to follow ever-shifting, complex immigration rules. These two memos are the latest example.”
David Leopold, Partner, Ulmer & Berne LLP and Counsel to DHS Watch, said: “Working together, these memoranda are rapidly transforming the USCIS from an immigration benefit agency into an investigative arm of ICE and taking clear aim at U.S. citizens, lawful permanent residents and immigrants attempting to play by the rules.”