As discussed in a previous post, the world of immigration law and procedure can seem deceptively simple. Many people believe that filling out some forms is all there is to it. Nothing could be farther from the truth. Forms are the language that the government speaks, but what you want to say and how to say it is very important. Therefore, before you get to the point of filling out forms you need to consider the following: (1) what your options are under the law; (2) if you are truly eligible for the benefit that you are seeking; (3) if there are any reasons to expect serious complications that might get you deported; (4) and if you have all the information and documents necessary to apply. Only then can you get to the business of filling out the appropriate forms correctly.
Following these steps has always been important, and any reputable attorney or DOJ accredited representative could have helped you go through that process before any form was ever filled out and anything was submitted to USCIS. Now, due to changes in the internal procedures of USCIS, it has become even more critical. In the last few weeks, two memorandums have come to affect the way that USCIS handles applications while processing them and after an adverse decision has been taken. These memorandums make it more important than ever to make sure you are applying for the right benefit, in the right manner, and with the right eligibility. Let us briefly, and in an oversimplified manner, consider these two memos.
The first memorandum to consider has to do with USCIS issuing Notices to Appear after denying a case or, in certain circumstances, before the denial happens. A Notice to Appear is an official document to be filed with the immigration court to initiate deportation proceedings against a person. The main goal of USCIS has always been the issuance of benefits (green cards, citizenship, etc.) while the enforcement responsibilities were located elsewhere, in other agencies. That is not to say that USCIS wasn’t authorized to issue Notices to Appear before, but it was under very specific circumstances. This new memorandum broadens the range of those circumstances. Most denials now could potentially end in a Notice to Appear.
The second memorandum compounds this problem. When you file an application with USCIS normally, if some documentation is missing or not enough, they would issue a Request for Further Evidence or a Notice of Intent to Deny to give the applicant a chance to provide the required information or documents so they can adjudicate and approve the petition. Now, certain applications can be denied without a request for evidence or an intent of denial letter being issued. This memorandum makes it easier to deny applications under certain circumstances.
These memos together make it even more necessary than ever that all precautions are taken before an application is submitted to the government. We strongly discourage people from taking the advice of unqualified people or from taking their cases to unauthorized practitioners, mainly “notaries,” but encourage them to seek the guidance of a knowledgeable and experienced attorney or Accredited Representative of the Department of Justice. There is simply too much at stake.
July 31, 2018 Update: USCIS has announced that the implementation of the NTA memo has been suspended until further notice pending “operational guidance.”