USCIS Broadens Immigration Enforcement Policy

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At a glance

• Nonimmigrants whose applications for immigration benefits are denied after their underlying status has expired are subject to the initiation of removal proceedings, according to a new USCIS policy directive.
• The new policy also increases the risk that any criminal act, arrest or conviction could subject a foreign national to removal proceedings, even if the conduct was not the basis for denial of an immigration benefit.

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The situation

In a significant shift, USCIS will require the initiation of removal proceedings against a broader group of foreign nationals, according to a new agency policy memorandum.  Notably, USCIS will issue Notices to Appear (NTAs) to those whose application for an immigration benefit – such as an extension of a nonimmigrant stay or adjustment of status – is denied and whose underlying status has expired. Additionally, when adjudicating an individual’s application for immigration benefits, agency officers will not be permitted to overlook instances where “fraud, misrepresentation, or evidence of abuse of public benefit programs is part of the record,” where the foreign national has been charged with a criminal offense and the case has not been resolved, or where he or she is under investigation for any crime.

A foreign national who is issued an NTA should retain counsel to understand and navigate the removal process, which ultimately will require appearance before an immigration judge.  The judge will determine whether the foreign national should be removed from the United States or is entitled to legal relief that permits him or her to remain.

How the new policy affects employer-sponsored foreign nationals

Though USCIS has long had the authority to issue NTAs and initiate removal proceedings, it typically exercised its discretion to do so only in serious cases that met the Department of Homeland Security’s enforcement priorities, leaving enforcement efforts largely in the hands of U.S. Immigration and Customs Enforcement (ICE), the enforcement branch of DHS.  It rarely, if ever, issued an NTA after the denial of an employment-based application for benefits when an applicant had no history of fraud, criminal activity or immigration violations.

In early 2017, however, President Trump issued an executive order that greatly expanded DHS’s enforcement priorities to include a wide range of conduct that was not previously prosecuted, and ordered agencies to develop policies consistent with these priorities.  In turn, DHS issued an implementing memorandum limiting immigration officials’ authority to use discretion to decline to prosecute certain classes of foreign national, subjecting many more foreign nationals to removal proceedings.  USCIS’s new NTA policy is an extension of the executive order and the DHS memorandum.

Though it is not yet clear how USCIS will implement its new policy, employer-sponsored foreign nationals will now be subject to removal proceedings in a number of circumstances. These include:

• A foreign national whose application to extend or change to H-1B, L-1 or another nonimmigrant status has been denied and whose I-94 expired during the adjudication of his or her application.
• A foreign national whose change of employer petition has been denied and whose I-94 has expired.
• Starting August 9, 2018, an F-1 student whose application to change status to H-1B has been denied and who has been found to have violated his or her nonimmigrant status, under USCIS guidance concerning unlawful presence for F, M and J nonimmigrants.
• A foreign national whose application for employment-based or family-based adjustment of status to permanent residence has been denied and who no longer has an underlying nonimmigrant status.

Additional focus on criminal conduct, fraud and misrepresentation

Though criminal conduct has long had negative consequences for foreign nationals in the United States, the new guidance indicates that any criminal act, arrest or conviction could subject a foreign national to removal proceedings, even if the conduct was not the basis for denial of an immigration benefit.  A USCIS finding of fraud or willful misrepresentation in prior government matters could also increase the risk of NTA issuance, even if the application is denied for a reason other than fraud or misrepresentation. In addition, USCIS has added a mandate for issuance of an NTA where there is “evidence of abuse of public benefit programs.” USCIS has given its officers the authority to refer groups of cases to -ICE for investigation before immigration benefit applications are adjudicated. 

Limiting prosecutorial discretion

A USCIS officer’s ability to use his or her discretion not to issue an NTA has also been curtailed.  Exercises of prosecutorial discretion will be subject to a narrow and formal agency review process outlined in the memo.  Therefore, it is expected that discretion will not be exercised except in rare circumstances.

The new policy is expected to result in an influx of new cases and exacerbate the backlog in U.S. immigration courts, which currently stands at some 700,000 cases. 

Fragomen is closely monitoring the implementation of USCIS’s new enforcement policy and will provide updates as developments occur.  This alert is for informational purposes only.