In my practice of immigration law over the past 25 years, I have always tried to provide counsel to my clients which is both legally sound and cost effective for them. I am often asked whether I thought that it was necessary to hire an immigration attorney in order to be successful in seeking an immigration benefit. My answer, of course, depended upon my judgment regarding the complexity of the immigration process involved with the particular immigration benefit sought. I would try to make a judgment regarding the capacity of the client to handle the subtlety of the immigration law and procedure involved. Finally, I would talk to the client about the amount of time he or she could spend trying to navigate the complex and sometimes treacherous process.
In recent years, the U.S. government has made enormous progress in bringing the application process to the internet and this effort has made it somewhat easier for an individual to successfully apply.
Based on these, and other factors, I often would tell clients that, if they had the time and were willing to struggle through learning more about penguins than they ever wanted to, they were safe to tackle it on their own. They didn’t really need to spend money on hiring someone like me.
Now Things Have Changed – Unsafe To Apply Without Attorney
Now things have changed and I no longer feel professionally justified to give such advise. Things have changed because there is a new sheriff in town, President Donald Trump. Since taking office in January of 2017, the President, his Attorney General, and many others on his team have publicly shouted out loud that they are intent on substantially curtailing Immigration into the United States. They attempted to pass this curtailment through the U.S. Congress. So far, these attempts have been unsuccessful due to strong opposition from Democrats in Congress. The failure in Congress, however, has led to an even more dangerous development.
The Trump administration has worked behind the scenes, out of the public eye, to force the Department of Homeland Security and the U.S. Department of State to make rule changes meant to discourage Immigration. These rule changes are, in many ways, much more dangerous to potential applicants and their families because they come in the form of enforcement measures as opposed to more visible limitations on quotas or restrictions on categories of potential immigration applications.
These changes are weaponizing the State Department Visa Officers and the U.S. Citizenship and Immigration Service (USCIS) officers to take new enforcement actions with regard to applicants and people who already hold a visa. Up until this year, these agencies were service providers tasked with facilitating applications for immigration benefits. Now, they are being charged as law enforcement agencies to discourage immigration applicants. They are no longer your friends!
Three Specific Policy Changes Threaten All Applicants For Any Immigration Benefit
As a potential applicant or petitioner for any immigration benefit you need to be aware of three specific administrative changes made by the White House, USCIS and the U.S. Department of State. If you are seeking a U.S. immigration benefit do not apply on your own until you feel you have a thorough understanding of each of these separate policy changes and the interplay between all three of them. I list each of these changes and provide links to all of them so that you will be able to study them on your own:
- Presidential Executive Order 13768: Enhancing Public Safety in the Interior Of the United States (Issued on: January 25, 2017)
This Executive Order provides a general mandate to the U.S. State Department and U.S. Department of Homeland Security (which includes USCIS) to conform their policies to the new enforcement mandate.
- USCIS. Policy Memorandum 602-0050.1: Updated Guidance for Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.
This new USCIS policy change provides for the increased enforcement approach mandated by Presidential Executive Order 13768 mentioned in item 1 above. This new memorandum mandates USCIS issuance of an Notice To Appear (NTA) when an application or petition for immigration benefits is denied and the applicant or beneficiary is deemed removable. (An NTA is a charging document that initiates removal proceedings against noncitizens, requiring them to appear before an immigration judge who will determine whether they will be removed from the United States.) A broad array of Department of Homeland Security personnel including agents and officers of USCIS, ICE, and Customs and Border Protection (CBP) have authority to issue NTAs and initiate removal proceedings.
Under this new guidance, USCIS will initiate an NTA in cases where there is evidence of fraud, misrepresentation, or “abuse of public benefits programs.” Most importantly, NTA’s will now be issued in cases where the applicant, beneficiary, or requestor is “not lawfully present” in the United States at the time of an application, petition, or request for an immigration benefit is denied. This has the potential to impact many thousands of individuals, including employment-based nonimmigrant workers and green card applicants, family-based immigrants, survivors of domestic violence and other crimes, and temporary visitors to the United States.
- USCIS Policy Memorandum 602-0163: Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a) and Chapter 10.5(b).
Beginning September 11, 2018, USCIS will use its discretion to deny an application, petition, or request filed with USCIS without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if insufficient evidence is sent with the initial filing of the application or if the evidence provided does not establish the applicant’s eligibility for the benefit requested.
Prior policy provided that USCIS was mandated to give an opportunity to an immigration benefit petitioner of applicant to remedy a failure by provide missing information or documentation unless there was “no possibility” that the deficiency could be cured by submission of additional evidence. Now, this new guidance, provides that if the petition or application is missing requested information or documentation, the adjudicator is under no obligation to request additional information. Rather, he or she should summarily issue a denial.
Petitioners and applicants will have to be extremely diligent in filing petitions with USCIS, making sure to include all pertinent supporting documentation with the initial filing, otherwise the petition will be denied without receiving the benefit of a request for evidence or notice of intent to deny giving the applicant the opportunity to cure the deficiency.
DANGER TO APPLICANTS AND PETITIONERS
Petitioning or applying for a U.S. immigration benefit has become significantly more dangerous process, especially in the last 10 months. I issue this alert for the purpose of advising you to retain an attorney before venturing into this new thicket on your own. The interplay of the three memoranda and many others makes the process very treacherous. A single mis-step can easily result in denial of a petition or application, at the very least. Denial can be expensive in both dollars and lost time. What’s worse is that a denial could mean that you may end up being issued a Notice to Appear which will mean you will be caught up in the legal morass of a removal proceeding. All of this would have been a bad dream a year ago. Today, it is a real possibility.