USCIS to commence removal proceedings against foreign nationals who are unlawfully present in U.S.

U.S. Citizenship and Immigration Services published a Policy Memorandum on June 28 stating that it will commence removal (deportation) proceedings if, upon denial of an application or petition, the beneficiary is unlawfully present in the United States.

The revised policy generally requires USCIS to issue a notice to appear, or NTA, in the following categories of cases in which the individual is removable:

• Cases where fraud or misrepresentation are substantiated or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases where an applicant is convicted of or charged with a 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 the ground of removability. USCIS may refer cases involving serious criminal activity to Immigration and Customs Enforcement before USCIS adjudicates a pending immigration benefit request and without issuing an NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the U.S.

The changes do not stem from a new law or regulation, but represent a shift in USCIS’s enforcement priorities. The memorandum replaced earlier guidance on the removal of foreign nationals and was issued under an Executive Order President Donald Trump signed just days after taking office.

BAL Analysis: The policy memo directs USCIS directorates to develop an implementation plan within 30 days. BAL’s Government Affairs team has been in contact with USCIS and ICE to discuss how the new policy may impact U.S. businesses. BAL will continue to provide updates and engage with the government on the new policy.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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