USCIS Postpones Harsh Notice to Appear Rule for Removal Proceedings

On July 30, 2018, USCIS announced that it will postpone implementation of its June 28, 2018, policy memo on the issuance of Notices to Appear (NTA) to initiate removal proceedings so that it may obtain operational guidance. Recently, USCIS issued two groundbreaking policy memos that would have drastically increased the number of non-citizens placed in removal proceedings, including employment-based nonimmigrants.  This is a most welcome reprieve and will hopefully result in a more judicious, fair, humane and practical policy.

In its memo of July 13, 2018, with an effective date of September 11, 2018, it made it easier for USCIS to deny petitions and applications outright instead of requesting additional evidence or providing a notice of an intent to deny a petition or application. In its memo on the issuance of Notices to Appear (NTA) to commence removal proceedings (hereafter the NTA memo) dated June 28, 2018, it broadened the pool of foreign nationals who will be placed in removal (deportation) proceedings and required USCIS to initiate removal proceedings where an application or petition is denied and the applicant or beneficiary is unlawfully present. Also, the NTA memo provided for the initiation of deportation proceedings where the foreign national is convicted of or charged with a criminal offense, even if such criminal activity is not the basis for the denial of the case or removability; the foreign national has committed fraud or misrepresentation (even if the case is denied for a reason other than fraud) or abused a program related to the receipt of public benefits; or where USCIS denies a naturalization application for lack of good moral character because of a criminal offense.

In removal proceedings, it is the burden of the foreign national to prove that he or she is eligible to remain in the US. Since removal proceedings are civil and not criminal, the foreign national has no right to an attorney.  He or she may be detained and sometimes without even a bond.  Since the proceedings are administrative in nature, there is no trial by jury; rather, the immigration judge makes the decision.

The foreign national may incur significant bars to reentry into the US if ordered removed, or if even granted voluntary departure to avoid a removal order. If ordered removed, the foreign national may be barred from the US from five to 10 years bar for removal based on a status violation.  If granted voluntary departure, then there is no bar to reentry based on a removal order, but the foreign national could still be prohibited from entering the US under the three and ten-year bars to reentry of INA §212(a)(9)(B). The three-year bar is triggered if the foreign national acquires more than 180 days of unlawful presence and then departs the US, and the 10-year bar results if the overstay period was more than 365 days. The definition of unlawful presence and the copious exceptions to it make it one of the most complicated aspects of immigration law.

If the foreign national fails to attend a removal hearing, departs the US and is issued an in absentia removal order, then he or she will be barred from entry into the US for five years (although a departure could also trigger the ten-year bar if the foreign national had already acquired unlawful presence in the US for more than one year).  If a petition or application is denied and the government serves the foreign national with an NTA to appear in removal proceedings, then even if he or she departs the US before the scheduled hearing, he or she could still be ordered removed in absentia.  However, in certain situations, such proceedings may be terminated before an in absentia ordered is issued or may be reopened for a more generous form of relief.

There are waivers available that allow the foreign national to reenter the US within this three or ten-year period. To reenter with a nonimmigrant visa, such as an F-1 student visa or H-1B specialty occupation visa, and even if ordered removed, there is the §212(d)(3) waiver, which requires a favorable balancing of the equities. However, to enter as an immigrant, or to adjust one’s status from a nonimmigrant to an immigrant (legal permanent resident) in the US, within the statutorily-barred period, a Form I-601 waiver is required.  The I-601 waiver is far more restrictive, requiring extreme hardship to a qualifying relative, who is defined as a parent or spouse who is a US citizen or legal permanent resident and not a US citizen or legal permanent resident child.  If the foreign national was ordered removed and wishes to enter with the barred period, an additional waiver, the I-212, will also be necessary.  The requirements for this waiver are similar to that of the 212(d)3) and do not require a showing of extreme hardship to a qualifying relative.

My office will employ strategic alternatives in the preparation and filing of immigration applications and petitions to try to avoid the resulting unlawful presence of a foreign national upon a denial, thereby circumventing removal proceedings.