What You Need to Know About Executive Order 13768 Regarding Inadmissible and Deportable Aliens

In one of our previous blogs, we explained how a memorandum issued by the U.S. Citizenship and Immigration Services (USCIS) in July may affect U.S. visa applicants. In the article, we also mentioned that according to another memorandum that had been issued earlier in the summer, USCIS will have more authority and discretion to start deportation proceedings. The memorandum in question, dated June 28, 2018, serves as a policy update for USCIS officers with regards to “referral of cases and issuance of notices to appear (NTAs) in immigration court for cases involving inadmissible and deportable aliens.”

The updated guidelines have particular bearing on the immigration cases of applicants with a criminal record. However, the guidelines also call for harsh consequences for foreign-born professionals who have lived and worked for a long time in the U.S. and whose visa application was denied after a long waiting period. In this article, we present an overview of the new policies.

Key Concepts Explained

  • Immigration and Nationality Act (INA) – The basic body of immigration law regulating all aspects of immigration proceedings such as visa and asylum application processes, grounds of inadmissibility, waivers, immigration law enforcement, and many more. The USCIS memorandum references some of the INA statutes when describing the classes of immigrants who should be prioritized for removal.
  • Executive Order 13768 – Signed on January 25, 2017, by President Trump, this executive order entitled “Enhancing Public Safety in the Interior of the United States” aims to expand interior immigration enforcement policies. Its key priority is to place all undocumented immigrants under the risk of immediate deportation – including families and immigrant who have resided in the U.S. for a long-time. The order encourages both federal and state authorities to take more decisive action to remove certain classes of unauthorized immigrants – especially those convicted or charged with any criminal offense or those who committed acts that constitute a chargeable offense.
  • U.S. Citizenship and Immigration Services (USCIS) – USCIS is a part of the U.S. Department of Homeland Security that supervises the application processes for green cards, family-based petitions, naturalization, employment-based visas, work permits, travel permits, and other immigrant benefits. It has the authority to approve or deny any of these benefits. The memorandum outlines how USCIS can issue notices to appear (NTAs) in order to start deportation proceedings against immigrants.
  • Notice to Appear (NTA) – A notice to appear is a document signaling the start of deportation proceedings. It orders a person to appear before an immigration court on a specific date. A notice to appear contains a section where it mentions “charges of removability or inadmissibility.” These are the legal reasons why deportation proceedings against you have been started and represent the immigration laws that you allegedly violated.

Key Policy Changes

The new policy memorandum expands the authority USCIS officers have to issue NTAs and therefore initiate deportation (also known as removal) proceedings. In the past, before issuing an immigrant with an NTA, USCIS had to consult the U.S. Immigration and Customs Enforcement (ICE). Only after the approval from ICE could the removal proceedings be initiated. Now, USCIS has greater discretion to issue NTAs and can do so when an immigrant is denied his or her visa application, asylum application, or another immigration benefit.

In the past, upon being denied an application, a foreign national could leave the United States voluntarily. This would give him or her a chance to apply for a visa again in the future. Now, however, when an immigrant is denied an application, he or she will receive a Notice to Appear which obligates the person to appear before an immigration judge. A failure to do so can result in deportation and a 5-year ban on re-entry to the United States.

In accordance with other laws, during the time a person awaits for the hearing before an immigration court, they are considered “unlawfully present.” If they lose their hearing, they can face a re-entry ban of up to 10 years.

Who Is Affected by the Policy Changes?

The main point of the memo and the policy changes is to prioritize the removal of foreign nationals who:

  • are convicted of a criminal offense
  • are charged with a criminal offense even though the criminal proceedings haven’t yet been resolved
  • committed an act for which they could be charged with a criminal offense
  • committed fraud or willful misrepresentation in connection with official applications before government agencies (by, for example, knowingly presenting false information)
  • abused any of the public benefit programs
  • already have a final removal order but haven’t left the country yet
  • pose a risk to public safety or national security (in the opinion of an immigration officer)

However, under the new policies, other classes of immigrants can be subjected to removal proceedings as well. Controversially, one of the groups is foreign professionals who currently hold an H-1B visa. Those who work legally in the U.S. under this visa can be placed in deportation proceedings if their petition to extend the visa is denied. This is controversial because, while a foreign national can work and stay in the U.S. legally for 240 days when the petition to extend the visa is pending, due to a huge backlog of cases, USCIS now takes approximately 6 months or longer to grant or deny the extension. If the petition is denied, a worker is considered unlawfully present and USCIS could issue an NTA.

How Can You Protect Your Rights as an Immigrant?

If you are a foreign national and in the process of applying for a U.S. visa or a similar immigration benefit, you might be affected by the new policy changes one way or another. For this reason, we strongly recommend you seek assistance from an experienced immigration attorney. Rotella & Hernandez courageously represents foreign nationals in their battles to protect and exercise their rights related to immigration benefits. Whether you have a criminal record or are facing deportation due to H-1B visa expiration, do not hesitate to contact us. We will analyze your circumstances carefully, advise with regards to the best course of action, and – if possible – offer you legal representation to protect your immigrant status.

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