In what immigration attorneys are describing as a major shift, U.S. Citizenship and Immigration Services (USCIS) recently announced two new policies that significantly raise the stakes for millions of people filing visa applications:
- First, USCIS may start denying any application that lacks a required document, forcing the applicant to re-apply and pay the entire government filing fee again. (Those fees are currently up to $1,760 for marriage green cards.)
- Second, for any applicant who lacks immigration status at the moment their application is denied, USCIS may immediately place them in removal proceedings — a lengthy and expensive court process that could result in deportation. IMPORTANT UPDATE – JANUARY 20, 2021: The Biden administration has repealed this policy, meaning undocumented applicants are at a lower risk of being placed in removal proceedings if their application is denied.
These are big changes, and we want you to have a clear understanding of what they could mean for you. Keep reading for all of the details.
But here’s the bottom line up front: It’s never been more important to file your visa application completely and accurately the first time.
Boundless remains dedicated to helping you maximize your chance of a successful visa application. We make it affordable to engage an experienced immigration attorney who reviews your entire application and answers your questions before you file with the government. Learn more about how Boundless can help.
USCIS announced a new policy that encourages its officers to deny any imperfect visa application without first giving the applicant an opportunity to fix the problem. This policy memorandum was publicly released on July 13, 2018, and is slated to take effect on September 11, 2018.
How were applications treated before this new policy?
Under a previous USCIS policy memo, officers were instructed to deny a visa application only when there appeared to be “no possibility” that the applicant could ultimately establish their eligibility.
In most cases where an application had problems, the USCIS officer would give the applicant an opportunity to fix the problem by sending one of these interim messages, before issuing a denial:
- A Request for Evidence (or “RFE”) spells out issues like missing documents, which the applicant can then provide to USCIS and get back on track.
- A Notice of Intent to Deny (or “NOID”) spells out why USCIS believes that an applicant has failed to demonstrate their eligibility for a visa (often if new adverse evidence has been uncovered) — and provides one last chance to provide more information to overcome this obstacle.
Either of these official notices would initiate a dialogue between USCIS and the applicant so that problems could be worked out before a final approval or denial.
The new memo will replace old guidance to USCIS officers described above, starting on September 11, 2018. If a visa application does not initially include “all required initial evidence,” then USCIS officers have the discretion to deny the application right away, without first issuing an RFE that would give the applicant a chance to fix the problem.
Once a visa application is denied, the applicant has to start all over again, filing an entirely new application, paying the government fees a second time, and going to the back of the line.
It’s important to note that the new policy won’t necessarily lead to all applications with errors getting immediately denied. USCIS states that its policy “is intended to discourage frivolous or substantially incomplete filings” and to “encourage applicants … to be diligent in collecting and submitting required evidence.” Moreover, USCIS states that “It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements” (emphasis added).
USCIS provides only one specific example of a visa application that would be treated differently under the new policy: If a green card application (I-485) is missing the required financial support form (I-864), then USCIS will immediately deny this application based on lack of sufficient initial evidence.
It’s difficult to predict just how many visa applications will start to be denied under the new policy, since USCIS officers are being told to exercise their individual discretion. On the one hand, the example provided by USCIS above is no small error, and it’s not unreasonable to expect an applicant to submit every required form in the initial application package.
On the other hand, the new USCIS standard for denying visa applications is any lack of “an official document or other form or evidence establishing eligibility at the time of filing.” Some officers could interpret this very broadly — for example, if an applicant did file the required financial support form but didn’t include just the right tax returns or paystubs.
Even more troubling is the fact that USCIS officers have occasionally issued RFEs by mistake — requesting evidence that was already there in the initial application package. When the government is the one making an error, it’s much more difficult to resolve a mistaken denial compared with a mistaken RFE.
Who does this affect?
The new policy will apply to virtually everyone filing any kind of form with USCIS, including applications for temporary visas, green cards, waivers, or U.S. citizenship.
The new policy does exclude applications related to Deferred Action for Childhood Arrivals (DACA) but only for as long as DACA is tied up in litigation and the federal courts have ordered USCIS not to change the program.
What happens if my application gets denied?
In most cases, applicants who are denied will be able to re-apply — but that means starting all over again, repaying the government filing fees, and moving to the back of the line.
It’s also possible to appeal a USCIS denial decision through an administrative process or even in federal court, but these options tend to be even more expensive than re-applying.
In the worst-case scenario, USCIS can also initiate removal proceedings after denying an application, depending on the applicant’s immigration status at the time or other issues uncovered during the application process. (See more details below.)
The best way to prevent a denial is to include all the required forms and documents when you first submit your application, completely and correctly.
Boundless has prepared detailed guides on how to get it right the first time, including:
- What documents are required for a marriage-based green card
- How to create flawless digital documents
- Translating documents into English
- How to prepare hard-to-find evidence
- Address history tips
- Employment history tips
USCIS announced a new policy that expands the situations where a visa applicant will be put into removal proceedings — the first step in a court process that may end with deportation. That process begins when USCIS issues a Notice to Appear (NTA), instructing the individual to appear before an immigration judge on a certain date. This policy memorandum was publicly released on June 28, 2018, and was effective immediately. Actual implementation, however, began at a later date (see “When will the changes be implemented?” below).
How were applicants treated before this new policy?
Previously, USCIS did routinely issue NTAs when certain visa applications were denied — but only for a narrow set of situations where an NTA was mandated by statute. In all other cases, the decision to issue an NTA was made on a case-by-case basis, taking into consideration the applicant’s life circumstances. For example, USCIS typically would not have initiated removal proceedings for the spouse of a U.S. citizen who lacked immigration status but also did not have a criminal record — especially if that applicant had a good chance of succeeding in immigration court. Such applicants, if initially denied, could choose to re-apply to USCIS after they had remedied the reason for denial.
How will applicants be treated under the new policy?
Simply put, USCIS can now shift more cases out of its own jurisdiction and into the immigration courts. Being placed in removal proceedings doesn’t necessarily end in deportation, but it’s far more complex and expensive to prevail before an immigration judge than to sort out a case within USCIS — and after receiving an NTA, the latter option becomes impossible.
In its new policy memo, USCIS doesn’t create any new grounds for deportation, but it does generally require its officers to initiate removal proceedings in any of the following scenarios:
- When any applicant is denied for any reason, and they lack immigration status at that moment.
- When any applicant is denied for any reason, and their record includes fraud, misrepresentation, or abuse of a government benefits program that created a grounds for deportation.
- When any applicant is denied for any reason, and their record includes a criminal offense that created a grounds for deportation. (If the criminal activity was serious enough, USCIS can send the case straight to Immigration and Customs Enforcement (ICE) before fully processing the application and issuing an NTA.)
- When an applicant for U.S. citizenship (“naturalization”) is denied because of a prior criminal offense that created a grounds for deportation.
In any of the above scenarios, the denied applicant can expect to receive an NTA from USCIS instructing them on when and where to appear in immigration court. This is the first step of removal proceedings, which can end with a court-issued deportation order.
Who does this affect?
This new policy will be applied to a wide range of cases within USCIS, including applications for temporary visas, green cards, waivers, or U.S. citizenship.
However, the policy will only have a direct impact on applicants whom the government is lawfully entitled to deport from the United States. Not all criminal offenses are serious enough to create a grounds for deportation, as explained in this Boundless guide for green card applicants with criminal records.
The new policy also excludes most DACA cases, which are subject to a different USCIS memo essentially restating the status quo.
In all likelihood, the largest category of people who will be directly affected by this new policy are those who lack immigration status — either because they originally entered the United States without authorization or because they “overstayed” past the expiration of a valid visa. Even if an applicant had a valid visa when they first submitted an application to USCIS, they could be placed in removal proceedings if their status expires before the denial of that application.
This problem will be particularly acute for foreign students and exchange visitors, due to yet another recent USCIS memo that retroactively applies a 10-year bar from the United States in some circumstances.
In short, this policy change dramatically raises the stakes of a USCIS application for anyone who could be deemed deportable.
Although the changes outlined in the policy memorandum were announced and went into immediate effect on June 28, 2018, they were not implemented right away but are being rolled out in stages:
Stage 1: On October 1, 2018, the changes were initially applied — though not exclusively — to denied forms I-485 (officially called the “Application to Register Permanent Residence or Adjust Status”) and I-539 (officially called the “Application to Extend/Change Nonimmigrant Status”).
During this first stage, USCIS prioritized applicants with records of encounters with law enforcement or fraud and those considered threats to national security. But immigration officers still had the discretion to issue NTAs to any denied applicant who was considered “removable,” even those without any such records or who did not pose any danger to national security.
- I-914/914A (officially called the “Application for T Nonimmigrant Status”)
- I-918/I-918A (officially called the “Petition for U Nonimmigrant Status”)
- I-360 (officially called the “Petition for Amerasian, Widow(er), or Special Immigrant” (Violence Against Women Act self-petitions and Special Immigrant Juvenile Status petitions))
- I-730 (officially called the “Refugee/Asylee Relative Petition”) when the refugee or asylee is physically in the United States
- I-929 (officially called the “Petition for Qualifying Family Member of a U-1 Nonimmigrant”)
- I-485 filed in connection with one of the preceding forms
In its announcement, USCIS stated that it would continue to prioritize applicants with records of encounters with law enforcement or fraud and those considered threats to national security. Any denied applicant, however, may receive an NTA.
Stage 3: A specific date for this stage is not publicly available on the USCIS website. For this stage of implementation, USCIS will extend the changes to denied employment-based visa applications. As of November 19, 2018, however, the status quo policy for this category of denied applications remains in effect.
IMPORTANT: The changes apply to denials that USCIS issued on or after the above dates of implementation for the applicable green card and visa categories, regardless of when the forms were filed. For example, if an I-485 was pending on June 27, 2018 (the day before the policy memo was announced and went into effect) and a denial of that I-485 was issued on October 1, 2018 (the date when Stage 1 was implemented), the applicant would likely receive an NTA.
How can I prevent getting a Notice to Appear?
It’s important to emphasize that this new policy does not create new grounds for deportability. If an applicant has valid immigration status at the moment their application is denied, and if they have no prior offenses that would trigger removal proceedings, they shouldn’t expect to receive an NTA. (It’s still challenging to deal with a denial, as explained above.)
For people who could be at risk of an NTA based on a prior offense, it’s still unclear how much that risk will grow under the new policy, since it was significant to begin with.
For people who could be at risk of an NTA based solely on lack of immigration status at the moment of denial, it’s all the more important to include all the required forms and documents when first submitting an application. (See above for more details.)
What happens if I get a Notice to Appear?
The NTA includes a date and location to appear in immigration court — often several months after the notice is issued.
While it’s still possible to successfully obtain a visa through an immigration court, these removal proceedings are complex and expensive. In the vast majority of cases, it’s essential to have legal representation.
How do I get legal representation in immigration court?
It’s important to note that most immigration attorneys are specialists — those with a great deal of experience with green card applications may have limited experience representing clients in removal proceedings, and vice versa.
With that in mind, the American Immigration Lawyers Association (AILA) can help find a licensed immigration attorney near you.
Alternatively, the U.S. Department of Justice accredits certain non-profit organizations that provide low-cost or free immigration legal services.
(Note: An earlier version of this post was published on July 20, 2018, based on the June 28 announcement of the NTA policy memorandum prior to implementation and on the July 13 announcement of the policy memorandum regarding application denial.)