The two new USCIS memos have changed everything. Ok, “everything” might be an overstatement, but they have changed a lot.
In brief, the first memo allows USCIS to deport more immigrants, and the second makes it easier for USCIS to deny more applications.
Some people say these memos are “attacking legal immigration.”
The Director of USCIS says, “this updated policy equips USCIS officers with clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it.”
So, what do these memos actually say? What effect will they actually have on your application? Let’s dive in and find out.
USCIS makes rules.
First, a review on regulatory law. Congress makes laws. Laws are usually broad and not very specific. Executive agencies like USCIS make rules. These rules fill in the gaps of the laws, specifically detailing how the government or a specific agency should work.
In this case, USCIS made some changes to rules by releasing these memos. The policy created in these memos is law and will be treated as such.
July 13th USCIS Memo
The most recent memo makes it easier for USCIS to deny visa and adjustment of status applications. It does this primarily by striking another memo, written on June 3rd, 2013. The June 2013 memo limited USCIS officials’ ability to use their discretion to deny applications.
Before looking at this in more detail, let’s define a few terms.
- RFE – Request for evidence. USCIS may send an applicant and RFE to request more evidence, or information. It might be for evidence that was supposed to be in the original application but wasn’t, or it might be for needed additional evidence, which wasn’t required in the initial application. Applicants have 12 weeks as RFE turnaround time.
- NOID – Notice of intent to deny. USCIS issues a NOID to an applicant if it intends to deny an application because of detrimental information not known to the applicant. So, if USCIS discovers information that is reason for denying an application, and that information is not known to the applicant, then USCIS will send a NOID. There can still be approval after a NOID. The applicant has up to 30 days to respond.
The 2013 Memo established the “no possibility” policy. This required USCIS officials to always issue an RFE unless there was “no possibility” the lack of information could be resolved with more evidence. The July 13th memo strikes this rule, returning in some ways to the policy pre-2013 memo. USCIS says it did this because the responsibility to prove eligibility in an application is upon the applicant, not upon USCIS.
USCIS also stated this change “is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.” Whether or not this leniency is true in application we will yet see.
The bulk of the July 13th USCIS memo clarifies the two types of denials.
- Statutory denials
- Denials for Insufficient Evidence
Statutory denials were still issued without RFEs or NOIDs during the 2013 to 2018 period. This practice will continue. These denials are issued when an applicant has no right to apply or the program they are applying for no longer exists.
USCIS gives these as examples:
- Irene, an undocumented immigrant, is being deported. She applies for a waiver, or cancellation of removal or deportation, because her removal will cause extreme hardship to her US citizen friend Bill. USCIS will issue a statutory denial of this application because Bill is not a qualifying relative, if there is no evidence of a qualifying relative.
- Igor, a legal permanent resident, or green-card-holder, files a family-based visa petition for Viktor to come over to the US. Viktor is Igor 2nd cousin, twice removed. USCIS will deny this application because, again, 2nd cousins are not qualifying relatives.
Denials for insufficient evidence are now more likely after the July 13th memo. This allows USCIS to deny any application that does not include all of the required initial evidence.
USCIS gives these examples:
- Waiver applications submitted with little or no supporting evidence.
- Form instructions require an official document but that document was not submitted.
- Eliza files a Form I-485, Adjustment of Status. She doesn’t include a Form I-864, Affidavit of Support, which was required. USCIS may deny her application without sending an RFE or NOID.
June 28th USCIS memo
The less recent of the two memos was released on June 28, 2018. This memo made policy changes to better enforce President Trump’s Executive Order 13768. That is the executive order that made removing undocumented immigrants with a criminal background a priority for “enhancing public safety.” Specifically, it targets immigrants who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.
To enforce the executive order, the memo encourages USCIS to issue more NTAs. An NTA is a Notice to Appear, and it requires immigrants to show up for removal proceedings; it begins the deportation process. In short, an NTA is not an immigrant’s friend — it might actually be his worst enemy.
(Go here for the official law INA § 240.)
USCIS will deport applicants who:
- By discretion of an immigration officer, pose a risk to public safety or national security.
- Are required by law to be deported
- Are subject to deportation but have not departed,
- Have committed fraud in regards to any official matter or application before a government agency
- Have abused any government benefits program
- Have been convicted, charged, or committed any criminal offense
- Are in the US illegally
- Should be deported because of other “special circumstances.”
National security cases. USCIS will deport immigrants engaged in or suspected of terrorism or spying.
Deportation required by law. If an immigrants deportation is required by law then USCIS will of course deport them. This comes up in certain circumstances including if the immigrants conditional permanent resident status is ended, refugee status is ended, or asylum status is ended.
Fraud, lying, or abuse of government benefits. Anyone who has committed fraud in regards to any official matter or application before a government agency, or abused any government benefits program will be deported.
Criminal Cases. This is a broad category. It includes any immigrant who been charged, been convicted, or committed a crime. The memo prioritizes cases that are EPS, Egregious Public Safety. These include:
- Murder, rape, or sexual abuse of a minor
- Illegally dealing guns or explosives
- Crimes related to guns or explosives
- Crimes of violence that could put the immigrant in prison for at least one year
- Asking for ransom
- Child pornography
- Human trafficking, peonage, slavery, or involuntary servitude
- Violating human rights
- Re-entry after deportation or exclusion
(Read this for more on EPS crimes INA § 101.)
USCIS will now deport immigrants who are not legally in the US.
Special Circumstances. Sometimes USCIS will issue an NTA at the request of the immigrant so that the immigrant can obtain legal status in the removal proceeding. Bold move. Also, USCIS may issue an NTA in special circumstances regarding asylum, Form N-400
Prosecutorial discretion. The memo states that USCIS officials, at their own discretion, can choose not to file an NTA in one of the above cases, on a case-by-case basis. This does provide some ray of hope for applicants but certainly should be relied upon.
What do the new USCIS memos mean for you?
Long story short, it just became even harder to file immigration applications by yourself and the stakes are even higher. If you are in the US and you apply for status and are denied, you could be deported. Of course, applying by yourself is still doable — you just have to follow twenty-page instructions and fill out form after form and document after document perfectly, the first time. No sweat.
Here are a few tips:
- File early if you are in the US on a visa – This will give you the best chance to have your matter decided before your visa expires. That way, if you are denied, you can apply again or exit the country legally without being deported.
- Double check your files – Double check every form. Reread all of the instructions. Make sure you have attached every required document.
- Don’t rely on past visa applications – If you have been approved for visas in the past, don’t think this time will be easy. USCIS does not need to consider past visa applications when looking for missing information.
- Consider getting help – we don’t usually say this on the Simple Citizen blog, because we’re big believers in the grit and frugality of the DIY immigrant, but now more than ever you should consider getting help on your application — whether that is from us or an attorney.
Some say these changes will be problematic for USCIS: USCIS is supposed to be the good guy and ICE is the bad guy. USCIS helps people enter the US legally, and ICE gets people out of the country who entered illegally. Now the role of USCIS is conflated with that of ICE — it’s interested in deporting people.
We’ll see how it plays out. Best of luck.
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