Beginning October 1, 2018, U.S. Citizenship and Immigration Service (USCIS) will begin a staggered rollout of a new notice to appear (NTA) policy. The first phase of the rollout does not include employment-based petitions.

The NTA policy authorizes immigration officers to issue NTAs and thus initiate the first step in removal (deportation) proceedings for those deemed to be removable from the United States after the denial of an immigration benefit. USCIS deployed the NTA policy in July 2018 but then later put it on hold while it developed additional guidance for the policy’s application.

In a recent announcement and during a September 27, 2018, stakeholder teleconference, USCIS offered additional details about the policy’s implementation and highlighted the following information:

• The initial focus is on applications (as opposed to petitions) and the policy affects adjustments of status (Form I-485), applications for naturalization (Form N-400), and applications to extend or change nonimmigrant status (Form I-539), among others.
• Employment-based petitions (including those based on Forms I-129 and I-140) are not included in the initial rollout, nor are humanitarian applications and petitions.
• Generally speaking, USCIS will not immediately issue an NTA upon the denial of an immigration benefit. It will wait for the expiration of the motion or appeal period before issuing an NTA—though it is worth noting that USCIS reserves the right to issue an NTA at any point during the adjudication period, where appropriate.
• The NTA policy does not affect motions to reconsider or reopen, or appeals. If USCIS ultimately approves an application after an NTA has been issued, it will coordinate with U.S. Immigration and Customs Enforcement (ICE) to make sure that ICE is aware of the favorable outcome. USCIS cannot cancel or withdraw an NTA that it has issued.
• The NTA policy does not include initial requests for deferred action for arrivals (DACA), renewals, or requests for DACA-related benefits.
• USCIS may, in its discretion, issue an NTA at the request of a removable foreign national so that he or she may seek lawful status or other relief during removal proceedings.
• As USCIS begins implementing the NTA policy, it will create a public-facing web page that will provide additional guidance on the policy and examples of scenarios that may trigger the issuance of NTAs.

USCIS has not provided a timeline for any additional implementation measures.

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Advocates for the bill include Arturo Rodriguez, United Farm Workers (UFW) President, stating that “the United Farm Workers strongly supports and cheers Senator Feinstein’s introduction of the Agricultural Worker Program Act of 2017 because the act recognizes that the people who feed our nation should be able to earn the opportunity to gain legal status.” Nonetheless, others remain less optimistic for the Act, and project that the Act is unlikely to be passed under the Trump administration. The Colorado Springs Gazette remarked that the bill “has virtually no chance of becoming law, however, with President Trump in the White House and his fellow Republicans in charge of the House and Senate.” The complete text of the bill is available on Feinstein’s website.

This post was written by Aaron M. Phelps of Varnum Law.

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On December 3, 2014, NBC News reportedly obtained a November 3 letter written by Shoba Sivaprasad Wadhia, Stephen Legomsky, Hiroshi Motomura, and Michael Olivas – four distinguished immigration law professors. The professors did not take a position on who should be included in the President’s executive action, but instead advocate that the President is not limited in using prosecutorial discretion to individuals whose dependents are lawfully present in the United States. The professors further encourage the Administration to consider the “broad prosecutorial discretion grounded in the Constitution and other laws of the United States.”

Interestingly, this letter preceded the President’s announcement and advocates a broader use of prosecutorial discretion than the Department of Justice’s Office of Legal Counsel. As discussed in another blog post, 17 states are suing the Administration over immigration executive actions.

Obama’s executive action is of major significance to businesses because it includes development of heretofore unavailable mechanisms for certain individuals to gain lawful employment status as well as addressing issues related to individuals in the US in H-1B and H-4 status, such as work authorization for dependent spouses. The potential   for up to 5 million individuals gaining lawful work status has broad implications for employers who may discover that existing workers are undocumented or have questions about employing workers with temporary work permission.  Employers are cautioned however that implementing regulations may not be issued for several months, so taking a wait and see attitude rather than initiating discussions with their workforce may be the most prudent course at this time.

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Thousands of 16- to 30-year-olds could benefit from relief that will let them work legally, and stop fearing deportation.

A profound change for immigrant youths with no way to seek legal status

President Barack Obama responds as he is interrupted while announcing that his administration will stop deporting and begin granting work permits to younger illegal immigrants who came to the U.S. as children and have since led law-abiding lives, Friday, June 15, 2012, during a statement in the Rose Garden of the White House in Washington Susan Walsh/AP

In a sweeping policy change with political overtones, President Obama has announced that his administration will allow undocumented youths who grew up here to apply for work permits and spare them from deportation if they meet certain criteria.

The policy will not include a path to legal residency, a first step before applying for citizenship, so it differs from the proposed DREAM Act. That proposal once had bipartisan Congressional support but has repeatedly stalled in the face of Republican opposition. Even though the new policy falls short of the path to legal status that immigration activists would like, the change is likely to expand Obama’sappeal among crucial Latino voters in November.

Obama’s decision will also have tremendous personal impact on a population of young people who were brought here as children and have no way to pursue legal status, either here or back in birth countries, under current immigration rules.

Certain states, such as California, Arizona, Texas, New York and Florida, are home to significant numbers of these youths. And many of them have anguished over their predicament. They say they have been left with no option but to work with fake identification, or under the table, or drive without a license or not drive at all. Some have been admitted to college but barred from pursuing loans and grants. Others have given up such dreams.

Stories of ambitious students foiled by their status and with no way to fix it have become a staple of TV and newspaper coverage. A few years back, college students at Sacramento City College made a short fiction film about undocumented students who had grown up as Americans only to discover that they were illegal immigrants. Some of the actors were undocumented. The characters talked about their fear of getting stopped by police, as well as their complex feelings about their parents’ decision to bring them to the United States.

Secretary of Homeland Security Janet Napolitano explains the new criteria in this memo. The policy will be limited to youths who arrived before the age of 16, have lived here continuously for at least five years and who are not older than 30. Criminal backgrounds will disqualify youths from the benefit. Youths must also be in school, have graduated or obtained a GED.

Reprinted by Permission © 2012, The Center for Public Integrity®

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