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New Immigration Guidelines Issued, Bringing More Enforcement with Notices to Appear

August 14, 2018

New guidelines from U.S. Citizenship and Immigration Services (USCIS) will have implications for a number of employment-based immigration, family-based immigration and naturalization cases.

The new policy memorandum issued July 5, 2018, "Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens," represents a shift in USCIS's long-standing primary role of processing immigration benefits, to one of immigration enforcement. The new policy affects the issuance of a Notice to Appear (NTA), the government document that is issued to a non-citizen whom the government believes to be inadmissible and/or removable from the United States that compels the individual to appear in immigration court for removal proceedings. In the past, NTAs were primarily issued by Immigration and Customs Enforcement (ICE) in cases of national security concerns, fraud, misrepresentation or for those with criminal convictions rendering the non-citizen removable from the US. This memorandum now requires USCIS to issue an NTA in many more circumstances than before. Some examples include:

Of particular concern to employers and their professional workers is the requirement that an NTA issue at the time USCIS denies a petition, if the beneficiary of the petition is "not lawfully present" at the time of the denial. Each year, USCIS denies hundreds of thousands of petitions and applications to change or extend status, green card applications, and numerous other benefits. Rather than giving these individuals the opportunity to depart the US on their own within a reasonable time, as most people typically do, USCIS will now compel these individuals to appear in immigration court for removal proceedings.   

Some of the major implications of the NTA Policy Guidance and new, related policy guidance on employment-based immigration, family-based immigration and naturalization cases are outlined below:

Guidance detailing how this new policy will be implemented has not yet been published by the government. However, it is anticipated that the implementing guidance will be published very soon. Employers need to plan ahead and file renewals of nonimmigrant petitions six months before foreign workers' status expires. Employers should consider utilizing premium processing in order to receive the decision on the extension request while the foreign worker is still in valid status in order to allow time for an evaluation of their remaining immigration options. Please reach out to the immigration team at Miller Canfield for proactive strategy discussions to ensure that foreign workers can continue their employment and status in the U.S. without interruption.