DWI/DUI and new USCIS Memo and consequences

[shabee]

Hello All - 

                USCIS publised a new policy memo on 5th July which was also published on Murthy website. the content of it is as follows

Thursday evening, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memo that appears to greatly expand the situations in which a foreign national is to be issued a notice to appear (NTA). An NTA is a charging document that initiates removal (i.e. deportation) proceedings against an individual.

A press release summarizing the memo explains that now the USCIS generally is required to issue an NTA to a person who is removable in the following circumstances:

• Cases in which fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. The USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases in which an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. The USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before the USCIS without issuing an NTA.
• Cases in which the USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The last bullet point, indicating that an NTA will be issued if a foreign national falls into a period of unlawful presence “… upon the denial of an application or petition” is especially troubling. This seems to indicate that anyone who has an extension or change of status denied after that individual’s I-94 expires will be issued an NTA.

A foreign national who is issued an NTA generally has the right to fight the case in court. But, there are serious immigration consequences for those who fail to get the NTA overturned, or who simply decide to depart the United States upon receiving an NTA.

[shabee]

The second bullet point says that anybody convicted or even charged with a criminal offense will be issued NTA. this is greater expansion of the policy. I think this is going to effect people with criminal cases including ones that are not CMT like DUI. 

For example , I am convicted of DWI class B in Texas and I think as per the policy I ll be issued NTA according to intepretation. These are troubling times. Just want to update folks in the similar situation. All the best

[lessonlearned]

notice to appear was going to happen to ppl who have DUI conviction anyways 

Its not the end of path, if you have got ur stamping done again you should be good.  everyone just need to explain there well what happened and how we have learned and not repeat the mistake again 

 

 

[shabee]

I talked to my immigration lawyer and went with him all these details...He said  and I quote "this shouldn't effect you 99.99%"

 

[shabee]

A press release summarizing the memo explains that now the USCIS generally is required to issue an NTA to a person who is removable in the following circumstances:

• Cases in which fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. The USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases in which an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. The USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before the USCIS without issuing an NTA.
• Cases in which the USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

 

Again the wording says that the 4 cases apply to a person who is already removable. This begs a question , Was uscis not giving NTA's to people who are already removable due to some offense earlier , before this memo? very confusing....

[Badluckadi]

As far as point no.2 is concerned, does that apply to dismissed or nolle prossed cases?  Does "Charged with a criminal offence" mean anyone who was previously charged or people who are currently charged with pending cases? That is very vague and troubling.

[haku]

Guys

I am on H1B . My i797 is valid till Sep 2018. My H1B visa was expired in Sep 2015. I had a run with the law in july 2015, i was convicted of impaired driving(first offense) in Nov 2015 .I heard for many individuals about revocation email which they received from consulate. I never received any revocation email ? How can i find out that if my Visa was ever revoked ? I am applying for h1B extension in July-Aug 2018(I have received h1B edition after DUI once ) .I came across the new USCIS memo on issuing NTA.

Also what does removable alien means ?

Are they referring https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-5684.html

In 237  please check B .Doe we fall under this if we have DUI ? ?

(a) Classes of Deportable Aliens.-Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: 

(1) Inadmissible at time of entry or of adjustment of status or violates status.- 

(A) Inadmissible aliens.-Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.

 

(B) 2/ Present in violation of law.-Any alien who is present in the United States in violation of this Act or any other law of the 2b/ United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i) , is deportable. 

 

I am really scared if i am deportable or will i received NTA from USCIS for the mistake which i did.

Any one spoke to attorney ?

[Prad12]

I was charged with DUI on 7th july 2018. Will I receive NTA from USCIS? The memo is vague. I am super depressed. My whole is ruined. I will regret this all my life. I will never ever touch alcohol in future. This memo is scary. I am not if consulting an Immigration will be of any help.

[Prad12]

On 7/6/2018 at 4:37 PM, shabee said:

I talked to my immigration lawyer and went with him all these details...He said  and I quote "this shouldn't effect you 99.99%"

 

Hi Shabee. I was arrested/charged with DUI/DWI on july 7th 2018. Will i receive an NTA? What did you lawyer say. Can you please elaborate.

Thanks

getting more depressed as time passes. 

[ADC10]

@Badluckadi, I have the exact question:

 

"or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability."

Does this imply that a  year-old dismissed case/dropped charges would be considered for an NTA/deportation too?

 

 

 

 

[sam3215]

This news seems to be scary.. i think even persons without conviction and dismissed cases are deemed deportable.. is that so?

[shabee]

23 hours ago, Prad12 said:

Hi Shabee. I was arrested/charged with DUI/DWI on july 7th 2018. Will i receive an NTA? What did you lawyer say. Can you please elaborate.

Thanks

getting more depressed as time passes. 

He told me that DWI/DUI without aggravating factors is not a CMT and should be no trouble as far as the memo goes. He did sound lil cautionary hence added saying that 99.99% shouldn't effect you. He asked me to mail all the court documents and said he would go over them and let me know if there will be any issue during adjustment of status, if so what can be done...

[shabee]

Here is what I think memo means as far as criminal cases is concerned...First of all it applies to removable aliens i.e If a h1b petition gets denied(for whatever reason it might be) and i94 is expired then if the applicant has criminal record(charged or convicted) , he will be sent a NTA outright , so no second guesses here...

the scary part is that before adjudication USCIS is supposed to refer the applicant to ICE if they find any serious criminal history. Which means if you have a serious criminal record then they will refer the case to ICE before adjudication...Dont know that ICE does with it...

I went through the actual policy memo and they categorized criminal cases in to EPS and non-EPS..EPS are some serious felonies which make a candidate outright removable. DWI/DUI comes under non-EPS..the question is if USCIS considers Simple DUI a serious crime. In the actual policy memo it says that USCIS should refer non-EPS cases that appear to be inadmissable or removable to ICE. Simple DUI is not removable but the tricky part is w.r.t inadmissable. DUI comes with automatic revocation of visa by the consulate. whether this case is considered inadmissable even with a valid i94 is the million dollar question. the other thing is  what happens if your application is already approved , will USCIS re-process those that are already approved.no idea..Only with passing time , will we able to learn the actual ramifications of this memo...fingers crossed.

[shabee]

2. Non-EPS Criminal Cases USCIS will issue NTAs in all Non-EPS criminal cases if the application or petition is denied and the alien is removable. Where USCIS does not issue an NTA, USCIS should refer Non-EPS cases to ICE prior to final adjudication if the alien appears inadmissible to or deportable from the United States based upon a criminal offense not included on the EPS list.

the above is an excerpt from the actual policy memo. bolded part  is the point I was referring to in the earlier post

[shabee]

On 7/8/2018 at 2:54 PM, hakunamatata2112 said:

Guys

I am on H1B . My i797 is valid till Sep 2018. My H1B visa was expired in Sep 2015. I had a run with the law in july 2015, i was convicted of impaired driving(first offense) in Nov 2015 .I heard for many individuals about revocation email which they received from consulate. I never received any revocation email ? How can i find out that if my Visa was ever revoked ? I am applying for h1B extension in July-Aug 2018(I have received h1B edition after DUI once ) .I came across the new USCIS memo on issuing NTA.

Also what does removable alien means ?

Are they referring https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-5684.html

In 237  please check B .Doe we fall under this if we have DUI ? ?

(a) Classes of Deportable Aliens.-Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: 

(1) Inadmissible at time of entry or of adjustment of status or violates status.- 

(A) Inadmissible aliens.-Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.

 

(B) 2/ Present in violation of law.-Any alien who is present in the United States in violation of this Act or any other law of the 2b/ United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i) , is deportable. 

  

I am really scared if i am deportable or will i received NTA from USCIS for the mistake which i did.

Any one spoke to attorney ?

you have a valid point on B. Does revoked H1B visa due to DUI but a valid i94 make an alien inadmissable? very likely but that being said visa is the one thats revoked due to DUI but not the actual visa application itself and probably it is not the case of inadmissability,  is something I've found in couple of immigration forums..but not sure though...the best thing is to consult a good immigration lawyer and have ur questions answered.

[newuser1111]

I'm not a lawyer, but based on the guidance

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf

IV. Criminal Cases Criminal cases fall under the priorities outlined in Executive Order 13768, as follows:

• Aliens described in INA §§ 212(a)(2) or 237(a)(2), Criminal and Related Grounds;

• Removable aliens convicted of any criminal offense;

• Removable aliens charged with any criminal offense that has not been resolved; and

• Removable aliens who committed acts that constitute a chargeable criminal offense

 

If your case has been resolved, you should be ok, right?

[Badluckadi]

12 hours ago, newuser1111 said:

I'm not a lawyer, but based on the guidance

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf

IV. Criminal Cases Criminal cases fall under the priorities outlined in Executive Order 13768, as follows:

• Aliens described in INA §§ 212(a)(2) or 237(a)(2), Criminal and Related Grounds;

• Removable aliens convicted of any criminal offense;

• Removable aliens charged with any criminal offense that has not been resolved; and

• Removable aliens who committed acts that constitute a chargeable criminal offense

 

If your case has been resolved, you should be ok, right?

I hope you're right. Even so, the chances of being issued an NTA are seemingly higher for people with any charges - dismissed or otherwise - considering they have to be disclosed on applications for immigration benefits. It's at their discretion to deny it and chalk it up to administrative reasons and use any criminal charges to highlight point no.2 in the memo. Or at least, that's what I got out of it. In any case, we'd need an expert - or at the very least, someone knowledgeable - to clarify this, as I'm pretty sure there are plenty of anxious people who are due an immigration benefit now or sometime in the near future. 

[pagladeewana]

I think we all are missing one critical part in the PM
"This PM will not apply to the use of discretion in adjudicating cases. Guidance on how the
enforcement priorities will affect USCIS’ use of discretion in adjudicating cases will be
addressed in a separate policy memorandum"

The memo clearly says that a separate memo will be released which will have details about discretion which adjudicator can apply while issuing NTA.

I dont think they are going to issue NTA in every denial case not for the love or sympathy for  anyone but to save themselves from lawsuits and further backlogging of the courts.

[pk2018]

I got DUI in 2013 and recently my H4-EAD got approved and I have submitted all required court documents (DUI) to USCIS. After they review my documents they have approved my H4-EAD. Now, still NTA effect on my status?

[xTDx]

2 hours ago, pk2018 said:

I got DUI in 2013 and recently my H4-EAD got approved and I have submitted all required court documents (DUI) to USCIS. After they review my documents they have approved my H4-EAD. Now, still NTA effect on my status?

Nobody knows. We must wait for more clarity on this policy change. 

[ADC10]

A New USCIS policy guidance ( made on 13th July) allows the adjudicators full discretion to deny any new application, without first issuing an RFE or an NOID. 

Same question: How does this play with the chances to getting a H1 B extension with a dismissed case? 

 

Since the PM is so new, should we give lawyers more time to bite on this? 

[newuser1111]

These two law combined together are crazy.

So USCIS nowadays can take as long as possible to make your status expired and issue denial and NTA to you without RFE.

And we need to take years to solve that NTA...

[pagladeewana]

On 7/13/2018 at 11:07 AM, pk2018 said:

I got DUI in 2013 and recently my H4-EAD got approved and I have submitted all required court documents (DUI) to USCIS. After they review my documents they have approved my H4-EAD. Now, still NTA effect on my status?

Did you get a rfe for court documents? and did you ever travel to india after your dui and got restamped?

[HarminderSethi]

On 7/6/2018 at 9:40 PM, shabee said:

Hello All - 

                USCIS publised a new policy memo on 5th July which was also published on Murthy website. the content of it is as follows

Thursday evening, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memo that appears to greatly expand the situations in which a foreign national is to be issued a notice to appear (NTA). An NTA is a charging document that initiates removal (i.e. deportation) proceedings against an individual.

A press release summarizing the memo explains that now the USCIS generally is required to issue an NTA to a person who is removable in the following circumstances:

• Cases in which fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. The USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases in which an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. The USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before the USCIS without issuing an NTA.
• Cases in which the USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The last bullet point, indicating that an NTA will be issued if a foreign national falls into a period of unlawful presence “… upon the denial of an application or petition” is especially troubling. This seems to indicate that anyone who has an extension or change of status denied after that individual’s I-94 expires will be issued an NTA.

A foreign national who is issued an NTA generally has the right to fight the case in court. But, there are serious immigration consequences for those who fail to get the NTA overturned, or who simply decide to depart the United States upon receiving an NTA.

 

For last point, Does it mean that after expiration of I-94 the person will be considered unlawfully present in the country even if the visa extension is filed and 240 days after i-94 expiration is not yet passed? or unlawful present status will start after 240 days past i-94 expiration date?

My I94 expiry date is 28th July, So my unlawful presence in the country will start from 29th July or once 240 days are passed after 28th July.

[shabee]

@HarminderSethi

Please consult a good immigration lawyer and get the feedback for your case.