Two new guidance memos bring huge changes to USCIS and the issuance of NTAs, NOIDs, and RFEs in the future

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In recent weeks, USCIS has published two extremely significant guidance memos that radically change policy for issuing certain forms: the Notice to Appear (NTA) requires a foreign national to appear before an immigration judge on a specified date, and is considered the official start of immigration proceedings; the Request For Evidence (RFE) is issued when an application or petition is missing necessary information, allowing the applicant or their attorney to provide further evidence; and the Notice Of Intent to Deny (NOID) gives the applicant on the verge of denial an opportunity to present a rebuttal for the decision.

The first memo issued is dated June 28, 2018, and instructs USCIS to begin issuing NTAs to immigration benefit applicants under the following instances:

  • Cases where fraud or misrepresentation is substantiated, or where an applicant is found to have abused a public benefit.
  • Criminal cases where an applicant is convicted, charged, or could be charged with a criminal offense. In serious cases, USCIS can inform ICE without issuing an NTA.
  • Cases in which USCIS denies Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases that are denied for any reason and leave the applicant “unlawfully present” in the United States.

That final point is most important. It means that for any applicant or petitioner with No Lawful Status whose case is denied, USCIS will issue an NTA, thus initiating removal proceedings. We do not know at this time when the new policy will be implemented, but potentially it could apply to cases that have already been submitted and are in process currently.

The second memo, dated July 13, 2018 and which will go into effect on September 11, 2018, grants USCIS officers the discretion to deny applications, petitions, and requests without first issuing a RFE or a NOID. Traditionally these forms are issued in order to give the applicant a chance to offer further evidence or rebut a potential denial before a final decision is made, but this new discretion allows USCIS to bypass this step.

RFEs and NOIDs are integral to due process and have traditionally been uncontroversial steps in a measured process. NTAs have traditionally been the domain of ICE and other enforcement wings of DHS, and making them standard issue responses by USCIS is a major change for the agency. USCIS agents are now given wide discretion to deny applications on first pass, without first seeking explanatory information or evidence, and if that denial leaves the applicant “removable” for any of the above reasons the agent must issue an NTA.

Anastasia Tonello, President of the American Immigration Lawyers Association, argues that these changes will “erase the ‘Service’ from USCIS” and transform the agency into “yet another DHS enforcement tool.” We fear the same, but would also argue it is vital now more than ever that anyone applying for an immigration benefit should always do so with the assistance of a qualified immigration attorney.

For more on the first memo, see: https://www.aila.org/advo-media/press-releases/2018/uscis-push-thousands-cases-deportation

For more on the second memo, see: https://us.cnn.com/2018/07/16/politics/visa-policy-changes/index.html

USCISMelissa SoberalskiImmigration, NTA, RFE, NOID, Deportation