Changes to USCIS policies – Shifting cases to Immigration Court

This summer, U.S. Citizenship & Immigration Services (“USCIS”) issued a new policy increasing the scope of people who may receive a Notice to Appear (“NTA”) in removal proceedings, and also a new policy increasing an officer’s power to deny petitions or applications without issuing a Request for Evidence (“RFE”). Together, these policies create a streamlined process for USCIS to deny applicants without an opportunity to supply any missing items, and place them in removal proceedings in Immigration Court without a chance to make any corrections to the record.

Most immigration applications have lengthy forms and complicated requirements. An untrained person could easily misunderstand the instructions and omit a required item. For example, a person without lawful status may finally be at the stage where she is eligible to file a Form I-485 application for adjustment of status to become a permanent resident. The form itself is 18 pages long, and has 42 pages of instructions. It requires multiple supporting documents. Some applicants are required to submit an affidavit of support from a sponsor while others are not. Under the prior policies, if a person didn’t realize she was supposed to include an affidavit of support, USCIS would issue an RFE, allowing 84 days to submit the missing item. However, under the new policies, USCIS will take the filing fee of up to $1,225, see that the affidavit of support is missing, issue a denial, and issue an NTA to send the case to Immigration Court.

The new policies also fail to account for USCIS error. Consider another example where a person submits required documents to USCIS, but USCIS doesn’t connect the documents to the applicant’s file and issues a denial. Under the old policy, a person could file a request to reconsider the decision with proof that the documents were delivered to USCIS, and the case would be reopened. But now, that wrongful denial may be promptly followed by an NTA, taking away the ability to have USCIS correct its mistake, and forcing the applicant to wait perhaps years to resolve the case in Immigration Court.

These policies require even more care in filing applications with USCIS. Those who use the services of a notario publico – who has no training and no license to practice law in the U.S. — are especially at risk. The better practice is to consult a qualified immigration attorney to avoid incomplete filings and the added cost and anxiety of being in removal proceedings.

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