Citing President Trump’s priorities for the removal of aliens from the United States articulated in Executive Order 13768, Enhancing Public Safety in the Interior of the United States, US Citizenship and Immigration Services (USCIS) issued a memorandum dated June 28, 2018, updating its guidance for the issuance of Notices to Appear (NTA) to commence removal proceedings in certain cases. 

Historically, USCIS, an arm of the Department of Homeland Security responsible for processing benefit applications, has referred matters involving failed applications for benefits to US Immigration and Customs Enforcement (ICE) to determine whether the applicant should be subjected to formal removal proceedings. The new memorandum greatly expands the circumstances in which USCIS will issue an NTA without consulting ICE. Specifically, the memo states that “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the U.S.” This provision mandates issuance of an NTA, regardless of ICE’s enforcement priorities or the facts and circumstances of a particular case. 

Given the nationwide immigration court backlog of 714,067 cases and the average wait time for a court date of 721 days, individuals whose applications are denied will become subject to a 10-year bar from re-entry as a consequence of being placed in proceedings and will be unable to work while proceedings are pending. Leaving the United States after proceedings have been commenced is fraught with peril and could result in issuance of an in absentia order of removal.

In the last month, the US Chamber of Commerce, individual US employers and the American Immigration Lawyers Association (AILA) have expressed their concerns, both with the substance of the memorandum and with the lack of notice and opportunity to comment before its issuance. USCIS was asked to postpone implementation to avoid the economic harm that will be caused by this new policy and to provide the opportunity to revise it based on consultation with the business community. 

On July 30, 2018, USCIS posted the following notice on its website postponing implementation of the June 28, 2018, NTA memorandum:

Policy Memorandum 602-0050.1, Updated Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, was issued on June 28, 2018 and instructed USCIS components to create or update operational guidance on NTAs and Referrals to ICE (RTIs), to be issued within 30 days of the Policy Memorandum. Issuance of the operational guidance is pending; therefore the implementation of PM 602-0050.1 is postponed until the operational guidance is issued.

In light of the postponement, the US Chamber of Commerce, AILA and others are hopeful that USCIS will agree to consider the comments of the business community before finalizing the operational guidance on the issuance of NTAs.