It’s been a busy summer at USCIS. They’ve issued several policy memos that have the potential to absolutely upend our legal immigration system. I’ve written a bit about the NTA and RFE memos, but we know more about them now than we did a few months ago. Then there’s the public charge memo that came out a few weeks ago – it’s received a lot of media attention and people are panicked. Although this may be the hottest topic of the three, it’s the one that has the least impact – for now.
Notice To Appear (NTA)
I think this memo is what’s caused my heart to sink more than most anything else these last two years…Why? Because it’ll keep people with perfectly safe cases from applying for benefits they should obtain and it will stop people with unique and more difficult cases from applying as well because the risks are greater. This memo, issued in June, said that when applications that are denied and the applicant is left with no legal status that a Notice to Appear should be issued. The NTA is what starts immigration court (removal/deportation proceedings). The problems with such a draconian policy are numerous and you can read about them here.
On October 1, 2018 parts of this memo went into effect. In late September, USCIS provided us with some guidance and details about how this would be implemented.
- It is not yet effective for humanitarian or employment-based cases
This is great, but what exactly is humanitarian? Clearly VAWA, T and U applications would count, but what about green card applications based on having that type of underlying cases? What about Temporary Protected Status or Special Immigrant Juvenile Status? And…if it’s not yet effective, when will it be?
- NTAs generally will not be issued at the same time as the denial
This will allow applicants time to appeal or file a motion to reopen/reconsider their cases. Typically, applicants have about 30 days after a denial is issued to submit the appropriate follow-up form and fees. This also allows applicants some time to leave the United States without being put in removal proceedings. For some (mostly in the employment context), they’ll be able to reapply through the consulate and hopefully have a better outcome. Yes, it’s only a guaranteed 30-ish days, but it’s better than being trapped here for years while the court process drags out.
- It’s effective on cases denied on or after October 1, 2018
USCIS emphasized that this will most directly impact I-485 and I-539 applications that are denied after October 1 (regardless of when the case was filed). This strikes me as particularly unjust because the applicant was not made aware of this policy at the time they filed.
Request for Evidence (RFE) and Notice of Intent to Deny (NOID)
You may want to review our earlier post that goes into more detail about what this policy does. In short, this gives immigration officers broad authority to deny a case when initial/required documentation is missing. Since the memo was released in July, USCIS has had some engagement with the public to explain what this means. They have repeated emphasized that simple mistakes – such as failing to copy one page of a passport when copies of the entire passport are required – would not be cause for denial. They’ve also said that attorneys will be held to the same standard as someone filing on their own (even though attorneys should always strive to get things perfect the first time around). Officers aren’t required to deny cases with missing information, though. They still have the discretion and authority to issue a RFE or NOID at any time. I am hopeful that there are still decent, kind and forgiving officers at USCIS who will use this memo sparingly, though I know that there are officers who will also use this memo to the fullest, denying whenever they can. This memo went into effect on September 11, 2018 and only applies to cases filed on or after that date.
I’ll likely follow-up on this as more news becomes available and USCIS issues more guidance, but it is important to know that – for now – this is only PROPOSED. The public has 60 days to provide comments to the agency and then they’ll amend and adapt as they see fit. Then, and only then, would it become binding on applicants.
USCIS has always been able to deny a green card application if the applicant received or was likely to receive public benefits – that is, that they would primarily dependent on public assistance for survival. The proposed change would allow USCIS to deny a green card application to anyone who received any public benefit, regardless of the amount of time. USCIS could also deny a case if anyone in the household (including US citizens) received public benefits. It’s received a lot of criticism and the Department of Homeland Security itself has even said that this rule could lead to:
- Worse health outcomes for pregnant or breastfeeding women, infants and children
- Increased use of emergency rooms
- Increased prevalence of communicable diseases
- Increased rates of poverty and housing instability
- Reduced productivity and educational attainment
Seriously? We want to do this to our neighbors? To US citizens who have a family member lacking immigration status? It seems to me that we’re hurting ourselves out of sheer hatred for certain communities. What happened to “do unto others…?”
Clients are constantly asking if they’re okay to have their kids receive assistance and for now, my answer is “yes.” We don’t know what the final rule may look like (if it ever even goes into effect), and I certainly don’t want anyone to have to decide between feeding their children today and trying to preserve their eligibility for a green card in the future.