In July 2018, United States Citizenship and Immigration Services (USCIS) published an updated policy memorandum. The memorandum updates USCIS’ guidance for adjudicators on the issuance of Notices to Appear (NTA). The purpose of this updated policy is to “better align with [the] enforcement priorities” outlined in Executive Order 13768, Enhancing Public Safety in the Interior of the United States, which was signed by the President on January 25, 2017.

In October 2018, USCIS began implementing the Policy Memorandum in cases involving Applications for Adjustment of Status and Applications to Extend/Change Nonimmigrant Status.

In November 2018, USCIS announced it would start implementing the Policy Memorandum in humanitarian cases starting November 19. This announcement is particularly disconcerting because it applies to individuals applying for humanitarian forms of relief, such as victims of domestic violence, trafficking, and other abuses. The following applications will be affected:

  • Forms I-914/I-914A, Applications for T Nonimmigrant Status;
  • Forms I-918/I-918A, Petitions for U Nonimmigrant Status;
  • Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile petitions);
  • Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant; and
  • Form I-70, Refugee/Asylee Relative Petition, where the beneficiary is present in the United States; ​
  • Form I-485, Application to Register Permanent Residence or Adjust Status (filed based on one of the forms listed above).

The announcement is alarming because under federal law, the government must generally not disclose these individuals’ information. This protection is provided given the sensitive nature of these cases.

USCIS’ Policy Manual states, “Because an unauthorized disclosure of information regarding a VAWA, T, or U case can have significant consequences, it is imperative that USCIS employees maintain confidentiality in these cases. Victims of domestic violence, victims of trafficking, and victims of crimes can be put at risk, as can their family members, if information is provided to someone who is not authorized. Anyone who willfully uses, publishes, or permits any information pertaining to such victims to be disclosed in violation of the above-referenced confidentiality provisions may face disciplinary action and be subject to a civil penalty of up to $5,000 for each violation.”

Federal law states this protection of an applicant’s information ends when an application has been denied; however, in most cases, the protection has been extended beyond the decision. The new policy indicates this statute does not prevent USCIS from issuing an NTA to an applicant whose request for a benefit has been denied. For many years now, these individuals were not placed into removal proceedings simply because their application or petition was denied.

The policy change will very likely deter eligible individuals from seeking humanitarian relief. The new policy may also result in decreased reporting of crimes by victims who feel vulnerable due to their immigration status, as well as decreased investigation and prosecution of these crimes.

According to USCIS, the memorandum will be applied to decisions made after the implementation date without regard to the filing date; however, USCIS officers may use discretion.

What changes does the New Policy bring?

Under this new policy, USCIS will issue NTAs in certain circumstances, namely:

  • Cases involving an immigrant who poses a threat to national security
  • Cases where the issuance of an NTA is required by law
  • Cases where there is substantiated fraud, misrepresentation, or abuse of public benefits, the immigrant is deportable, and there is a “negative eligibility determination” (i.e. a denial, withdrawal, termination, etc.)
  • Cases involving criminal conduct by the applicant
  • Cases involving an unfavorable decision when an applicant is not lawfully present in the United States

USCIS may issue an NTA in other cases, such as:

  • Cases where the applicant requests the issuance of an NTA
  • Cases where a grant of asylum is denied or rescinded
  • Cases where an applicant naturalization is deportable, or it is determined their permanent residence was issued in error
  • Cases involving confidentiality protections (such as U Visa and VAWA applications) where the benefit is denied, and the confidentiality protection has ended

The two bullet points underlined above are the most concerning in cases involving request for humanitarian relief. Many of these applicants are without lawful status or by the time their application is adjudicated their lawful status has expired.

 For more information on this Policy Memorandum, please see our previous post.

Lopez Immigration Law will continue to monitor the effects of the memorandum and hopes to publish an update on our blog in the future.

For information on your specific situation, we recommend you use our contact form to schedule an appointment with our office. We would be glad to help you determine the best option for you.