In a move consistent with the Trump Administration’s push to broaden USCIS’ enforcement mandate, USCIS began implementing a Policy Memorandum concerning issuance of Notices to Appear as of October 1, 2018. This Policy Memorandum, published June 28, 2018, announced that USCIS would be widening the parameters for the issuance of Notices To Appear (NTA), the documents that initiate removal proceedings sent to those deemed unlawfully present in the United States after the denial of an immigration benefit. Various Department of Homeland Security (DHS) personnel, including USCIS, ICE and CBP officers, have the authority to issue these documents, but historically USCIS’ ability and willingness to issue these NTA has been more limited, and USCIS has only issued around 12% of all NTA.
Perhaps most concerning is USCIS’ new mandate to issue an NTA where the applicant, beneficiary, or request is not lawfully present in the United States at the time an application, petition, or request for immigration benefit is denied. This will have broad-reaching consequences, particularly for employment-based applicants whose petitions are pending beyond the expiration of their current status. The Trump Administration’s recent suspension of Premium Processing for H-1B petitions is going to compound these concerns for H-1B visa holders. Whilst USCIS has indicated that “the June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time”, we suspect it is only a matter of time before employment-based petitions are subject to these new NTA rules as well.
USCIS has always maintained the authority to issue NTAs. However, considering the increased breadth of situations where USCIS NTA issuance is instructed under the new policy, and that USCIS will largely not refer cases to ICE for NTA issuance, the new guidance now turns USCIS into a third enforcement component of DHS.