Monthly Archives: August 2018

USCIS Policy Change Makes Nonimmigrant Students and Exchange Visitors More Likely to Accrue Unlawful Presence Toward 3/10-Year Bar and Permanent Bar

Starting on August 9, 2018, U.S. Citizenship & Immigration Services (USCIS) and the U.S. Department of State (U.S. Consulates and Embassies) began applying a stricter policy to calculate unlawful presence for F students, M vocational students and J exchange visitors in the United States.  The policy makes nonimmigrant students and exchange visitors (as well as their dependents) who fall out of status more likely to face the 3/10 year-bar to re-entry under INA 212(a)(9)(B), following departure from the U.S. It also makes them more vulnerable to the permanent bar under INA 212(a)(9)(C), caused by illegal re-entry or attempted illegal re-entry following accrual of unlawful presence of more than one year.

The August 2018 USCIS policy and DOS Policy state that F, M and J nonimmigrant visa holders begin to accrue  “unlawful presence”  the day after they violate the terms of their status.

With this policy change, it is no longer required that students and exchange visitors — who are admitted to the U.S. for duration of status (D/S) — be given notice of the status violation by USCIS or an Immigration Judge in order for unlawful presence to begin.  The removal of this procedural safeguard creates harsher penalties to nonimmigrants who fall out of F, M or J status, even when the violation is accidental, inadvertent, or due to extraordinary circumstances beyond their control.

What is the 3/10-Year Bar Under INA 212(a)(9)(B)(i)? 

3-Year Bar

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings.  The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.

10-Year Bar

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

There are certain exceptions to the unlawful presence rules. For example, any period of unlawful presence prior to April 1, 1997 – the date the law went into effect – does not count toward the 3 year/10 year bars. Furthermore,  a minor who is unlawfully present does not accrue any time toward the 3 or 10 year bar until he turns 18.

What is the Permanent Bar Under INA 212(a)(9)(C)(i)? 

Section 212(a)(9)(C)(i)(I) of the INA inflicts a permanent bar if you illegally enter or attempt to illegally enter the U.S. following accrual of more than 1 year of unlawful presence on or after April 1, 1997.

The accrual of unlawful presence is cumulative. For example, if you were unlawfully present for 6 months in 3 different periods (i.e. 18 months total), and you then re-enter the U.S. illegally, you face the permanent bar.

Unlike with the 3/10-year bar under INA 212(a)(9)(B), there are no exceptions for minors when it comes to the permanent bar. So if you were under 18 when you came to the U.S., you accrued unlawful presence of more than 1 year, you left, and then returned to the U.S. without inspection, you face the permanent bar.

What is Unlawful Presence? 

The term “unlawful presence” is defined in section 212(a)(9)(B)(ii) of the INA. It refers to a person who “is present in the United States after expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

To accommodate unexpected changes in academic programs and plans, the U.S. government normally admits F, M, and J nonimmigrants for duration of status (D/S) instead of up to a specific date.  This means nonimmigrant students and exchange visitors may remain in the U.S. as long as they maintain their status, i.e. have a full course of study or remain in the exchange program, avoid unauthorized employment or other unauthorized activities, and timely complete their academic or exchange program or obtain an extension.

What are the Effects of the Unlawful Presence Policy Change? 

Until the policy change went into effect, USCIS and the DOS interpreted the law to require notice of a status violation to persons admitted for D/S in order for unlawful presence to begin.  A formal finding of a status violation is made by USCIS, an Immigration Judge, or the Board of Immigration Appeals in the context of an application for an immigration benefit (e.g. change of status or extension of status request) or in removal proceedings, whichever is earlier.

A prior USCIS May 6, 2009 memorandum stressed “the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated.” The memo noted,”…it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence (‘period of stay not authorized’). Although these concepts are related (one must be present in an  unlawful status in order to accrue unlawful presence), they are not the same.” 

With the policy change, USCIS no longer distinguishes between falling out of status (including minor and technical violations) and accruing unlawful presence. Rather than considering unlawful presence to begin accruing the day it denies an application or petition for immigration benefits, USCIS will now find that unlawful presence began retroactive to the date it determines a status violation occurred.  The DOS updated its Foreign Affairs Manual to incorporate this policy change and guide consular officers in determining whether the unlawful presence bar applies. 

Under the new policy, “unlawful presence” will begin the day after a status violation occurs, even if the person has no idea that s/he has fallen out of status. Examples include accidentally engaging in unauthorized employment; relying on erroneous advice by a Designated School Official (DSO) regarding reduced course load; and missing work for 90 days or more due to a serious injury while on Optional Practical Training (OPT).

USCIS will apply the policy retroactively; nonimmigrant students and exchange visitors who are found to have violated their status before the new policy took effect will also begin to accrue unlawful presence as of August 9, 2018.

F, M or J nonimmigrants who failed to maintain status before August 9, 2018, start accruing unlawful presence based on that failure on August 9, unless they already started accruing unlawful presence on the earliest of the following:

  • The day after USCIS denied the request for an immigration benefit, if USCIS made a formal finding that they violated their nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94, Arrival/Departure Record, expired, if the F, M or J nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge ordered them excluded, deported or removed (whether or not the decision is on appeal).

F, M or J nonimmigrants who failed to maintain status on or after August 9, 2018, start accruing unlawful presence on the earliest of the following: 

  • The day after the F, M or J nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period)
  • The day after the Form I-94 expires, if the F, M or J nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders them excluded, deported or removed (whether or not the decision is on appeal)

When determining whether an F, M or J nonimmigrant accrued unlawful presence and was no longer in authorized stay, USCIS will consider information related to the person’s immigration history, such as:

  • information in the systems available to USCIS
  • information in the person’s record, including the person’s admissions concerning his immigration history or other information discovered during adjudication of an application or petition
  • information obtained through a Request for Evidence or Notice of Intent to Deny, if any

Conclusion

USCIS’ unlawful presence policy change, in combination with its updated guidance on Notices to Appear and Requests for  Evidence, will have dire consequences for nonimmigrant students and exchange visitors, as well as their dependents.

While there is a 212(d)(3) nonimmigrant waiver and a Form I-601/INA 212(a)(9)(B)(v) immigrant waiver for the 3/10 year unlawful presence bar, they come with certain eligibility standards and they are not granted in every case. There are also limitations to obtaining a Consent to Reapply (I-212 waiver) to be excused from the permanent bar under INA 212(a)(9)(C).

New policies are not as binding as changes in the law passed by Congress, or regulations issued through notice-and-comment rulemaking. Still, unless the policy change is rescinded or is struck down by federal courts, it reflects how USCIS and the DOS will calculate unlawful presence for F-1, M-1 and J-1 nonimmigrants and their dependents (F-2, M-2 and J-2) as of August 9.

For more information, read our related articles:

Updated Policy Makes It Easier for USCIS to Deny Petitions and Applications Without First Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Updated Policy Makes It Easier for USCIS to Deny Petitions and Applications Without First Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

As of September 11, 2018, an updated policy will make it easier for USCIS to deny a petition, application or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility for the benefit sought. The new guidance applies to all petitions, applications and requests (except for Deferred Action for Childhood Arrivals/DACA cases) received by USCIS after the effective date.

The policy memorandum (PM), dated July 13, 2018, rescinds the prior June 3, 2013 guidance implementing the “no possibility” policy and restores to the USCIS officer full discretion to deny petitions, applications and requests without first issuing an RFE or a NOID, when appropriate.  According to USCIS, this policy aims to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage petitioners, applicants and requestors to collect and submit required evidence in the initial filing.

The prior 2013 PM provided that RFEs should be issued unless there was “no possibility” that additional evidence might cure the deficiency and lead to an approval. Thus, in practice, it limited denials without RFEs or NOIDs to requests where an adverse decision was mandatory under law (e.g. statutory denials such as when an applicant requests a benefit that no longer exists).

The updated policy provides guidance as follows:

Statutory Denials

USCIS will continue issuing statutory denials, when appropriate, without first issuing an RFE or NOID. This includes filings when the applicant, petitioner, or requestor has no legal basis for the benefit sought, or submits a request for a benefit under a program that has been terminated.

If all required initial evidence is not submitted with the application or petition, USCIS may exercise its discretion to deny the benefit request for failure to establish eligibility. Examples include:

  • Waiver applications that require a showing of extreme hardship to a qualifying relative (U.S. citizen or permanent resident spouse or parent), but there is no evidence of a qualifying relative and the applicant is claiming extreme hardship to another relative (e.g. U.S. citizen child).
  • Family-based immigrant petitions filed for relatives that do not fall under any of the family-based categories.

Denials Based on Lack of Sufficient Initial Evidence

USCIS, in its discretion, may deny the application or petition when the required initial evidence is not submitted with the original filing and the applicant or petitioner fails to establish eligibility for the benefit sought. Examples include:

  • Waiver applications submitted with little or no supporting evidence.
  • Cases when the regulations, the statute, or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no such submission. For example, a Form I-864, Affidavit of Support, if required, was not submitted with a Form I-485, Application to Register Permanent Residence or Adjust Status.

This PM updates Chapters 10.5(a) and 10.5(b) of the USCIS Adjudicator’s Field Manual and contains an “Additional Considerations” section, which is not new, and is nearly identical to the policy in the superseded 2013 PM. For instance, USCIS must still offer the applicant or petitioner an opportunity for rebuttal before making a decision if it has derogatory information and the applicant or petitioner is unaware that the information is being considered.

Conclusion

By restoring full discretion to USCIS officers to deny petitions or applications, when appropriate, without issuing a Request for Evidence or Notice of Intent to Deny first, the new guidance reflects USCIS’ expanded enforcement priorities, which are also revealed in its updated policy on unlawful presence and Notices to Appear in removal proceedings.

For more information, read our related articles:

USCIS Policy Change Makes Nonimmigrant Students and Exchange Visitors More Likely to Accrue Unlawful Presence Toward 3/10-Year Bar and Permanent Bar

Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

On June 28, 2018, USCIS issued updated guidance requiring its officers to initiate removal proceedings in more cases to align with President Trump’s executive order, Enhancing Public Safety in the Interior of the United States.  USCIS Director L. Francis Cissna said the new policy equips USCIS officers to better support the immigration enforcement priorities of the Department of Homeland Security (DHS).

The 2018 memorandum instructs USCIS to issue a Notice to Appear in removal proceedings before an Immigration Judge to inadmissible or deportable persons in an expanded range of situations, instead of referring NTAs to the U.S. Immigration & Customs Enforcement (ICE) in limited cases.  One major change is that an NTA must be issued whenever a person’s immigration benefit request is denied and he or she is “not lawfully present” in the United States.

What is a Notice to Appear?

A Notice to Appear is a Form I-862 the DHS issues to initiate removal proceedings against a person. The NTA includes the charges against the person and alleges the immigration laws he or she violated.  Some NTAs include the date and time of the initial hearing, when you first appear before an immigration judge who decides whether you should be removed or whether you qualify for relief, including voluntary departure in lieu of a removal order.

What Was the Previous USCIS Policy on Issuing a Notice to Appear? 

The November 7, 2011 Policy Memorandum (PM), which is now superseded by the June 28, 2018 PM, provided “USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of resources of the Department of Homeland Security and the Department of Justice to enhance national security, public safety, and the integrity of the immigration system. ”

The 2011 policy instructed USCIS to issue an NTA in the following situations:

  • Cases where it is required by statute or regulation, such as termination of Conditional Permanent Resident Status and denials of Form I-751, and asylum referrals.
  • Fraud or willful misrepresentation/section INA 212(a)(6)(C) cases when a Statement of Findings substantiating fraud is part of the record.
  • In naturalization (Form N-400 application) cases where the applicant is removable, including those who were inadmissible at the time of obtaining permanent residence.

The 2011 policy further directed USCIS to refer matters to ICE in the following situations:

  • Egregious Public Safety (EPS) cases “where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of” certain specified aggravated felonies as defined under section 101(a)(43) of the INA; is a Human Rights Violator, is a known or suspected street gang member or is subject to Interpol  hits; or has re-entered the U.S. after removal subsequent to a felony conviction where no Form I-212, Application for Consent to Reapply for Admission, has been approved.
  • Cases where the person is inadmissible or removable due to a criminal offense falling outside of the EPS definition, after USCIS completes adjudication.

What is the Current USCIS Policy on Issuing a Notice to Appear?

The June 28, 2018 Policy Memorandum (PM) requires USCIS to issue a Notice to Appear in a broader range of cases without first consulting ICE.

Many more persons will be placed in removal proceedings as USCIS is now required to issue an NTA in the following situations:

  • If an application or petition for immigration benefits is denied and the person is not in lawful status (not lawfully present).
  • If an application or petition for immigration benefits is denied and the person is removable (i.e. subject to any removability grounds under INA 237), especially when there is evidence of fraud or misrepresentation and/or abuse of public  benefit programs.
  • Criminal cases in which the applicant is removable and has been convicted of or charged with any criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or is the ground of removability.
  • Naturalization cases in which the applicant is removable and USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds due to a criminal offense.

USCIS will continue to apply the 2011 NTA guidance to the following:

  • Cases involving national security concerns.
  • Cases where issuing an NTA is required by statute or regulation.
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status.
  • Deferred Action for Childhood Arrivals (DACA) recipients and applicants when USCIS is: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

Potential Negative Effects of the NTA Policy Change

The new NTA guidance might discourage eligible applicants from seeking immigration benefits out of fear of getting their requests denied and being placed in removal proceedings if they are not lawfully present.  This includes persons applying for a green card (lawful permanent resident status), a change or extension of status, a waiver of inadmissibility and other immigration relief.

Departing the United States on one’s own, after being denied an immigration benefit, will bring harsh penalties when an NTA is issued and the person fails to appear for the scheduled Immigration Court hearing. An in absentia removal order is issued if there is clear, unequivocal and convincing evidence that written notice was provided and that the person is removable, but did not attend the proceeding.

At the same time, those who wait in the United States for an initial court date to appear before an immigration judge will continue to accrue unlawful presence toward the 3/10-year bar to re-entry under INA 212(a)(9)(B).  A person who accrues unlawful presence of more than 180 days but less than one year is barred from re-entering the U.S. for three years. The bar to re-entry is 10 years if the person accrues unlawful presence of more than one year prior to departure. The initiation of removal proceedings does not stop the accrual of unlawful presence.

Furthermore, the updated policy turns USCIS into another immigration enforcement component of DHS, along with ICE and the U.S. Customs & Border Protection (CBP).  An increase in the issuance of NTAs will create additional backlog in the immigration court system and lengthen USCIS processing times.

[NOTE: On July 30, 2018, USCIS posted a notice stating operational guidance on how to implement the new policy is still pending. The issuance of the June 28 PM is postponed until the operational guidance is issued.]

Conclusion

Besides the new NTA policy, USCIS issued updated guidance to make it easier to deny a petition or application without first issuing a Request for Evidence or Notice of Intent to Deny. Another  USCIS policy change also subjects more nonimmigrant students and exchange visitors to accruing unlawful presence toward the 3/10-year bar, as well as the permanent bar under INA 212(a)(9)(C).

All these new policies are in line with the February 2018 change in USCIS’ mission statement, deleting sentences that refer to the United States as “a nation of immigrants” and to noncitizens who apply and pay for immigration benefits as “customers.” USCIS Director Cissna explained that this is “a reminder that we are always working for the American people.”

For more information, read our related articles:

Updated Policy Makes It Easier for USCIS to Deny Petitions and Applications Without First Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

USCIS Policy Change Makes Nonimmigrant Students and Exchange Visitors More Likely to Accrue Unlawful Presence Toward 3/10-Year Bar and Permanent Bar

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

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