A Step Backwards: USCIS' New Notice to Appear (N.T.A.) Policy is a Bad Move

Last week on July 5th, 2018 U.S. Citizenship and Immigration Services (USCIS) presented a new guidance regarding the issuance of Notices to Appear (NTA). An NTA is a document that is served to foreign nationals to issue them to appear in an immigration court. It serves notice that the deportation process has begun, and a court date will be set to determine if they will be able to stay in the United States through relief from removal, or are subject to deportation.

This new policy will force thousands of individuals into the already overburdened immigration court system and redirect the scarce amount of resources that USCIS has. It steers away from the current practice that has been set in place for more than a decade where the DHS enforcement functions and the functions of the legacy INS were separated into three components :CBP (border enforcement and inspections); ICE (interior enforcement) and USCIS (adjudication of immigration benefits).

The previous guidance allowed ICE to handle NTA’s and gave USCIS more of an opportunity to work on their primary responsibility of working on adjudications, while the new guidance gives USCIS the role of DHS. USCIS will now be in charge of issuing an NTA when there is “evidence of abuse of public benefit programs.”

USCIS will be issuing NTA’s to individuals who have had their extension applications denied because of the changing of current immigration policies. Individuals who have worked and resided in the United States legally are now at risk for the issuance of NTA’s because of prior guidance practices involving processing employment-based extension petitions. Many of these immigrants have been working in the United States and contributing to the economy on a regular basis. NTA’s will be issued to individuals whose applications or petitions have been denied or to immigration benefit requests where the applicant, beneficiary, or requestor is considered to be removable.

For example, if an individual holding H-1B status working as an analyst requests a status extension and gets denied due to backlogs, they will be issued an NTA. While they wait for a response from USCIS, their status may expire and they will be subjected to deportation.

An individual who is not “lawfully present” in the United States during the time of the filing of their application or petition will have their request denied. This is USCIS’s aim to reestablish the “lawful presence” policy memo that will become effective in the beginning of August.

An NTA will force international students into the court system and force them out of status when they were previously following longstanding policy. DACA requestors will not be affected by this policy and will continue to follow the 2011 NTA memo during cases where a decision needs to be made of issuing an NTA or handing the case over to ICE.

This policy is based on the idea that all immigrants that fall out of status end up staying in the United States, while these assumptions are confuted in recent data. According to May 2017, DHS Overstay Report, less than 2 percent of the 50.4 million nonimmigrants who were supposed to leave the US in 2016 overstayed.

Unfortunately this is another policy that undervalues immigrants in the United States and all the hard work and sacrifices they endure. It goes on to send yet another message from USCIS that immigrants are not welcome here in the United States.

If you have any questions regarding the current NTA, please contact Attorney Nicholas J. Mireles at NicholasMireleslegal@gmail.com.