Update: USCIS Resumes Accepting and Adjudicating Deferred Action Applications for Non-Military Applicants

September 19, 2019

Today, in a huge victory for the vulnerable individuals and families impacted, the Department of Homeland Security alerted members of the Oversight & Reform Committee that at the discretion of Acting Secretary McAleenan it would resume “consideration of non-military deferred action requests on a discretionary, case-by-case basis, except as otherwise required by an applicable statute, regulation, or court order.”

From the first reports of this change in policy, AILA and our members have played a significant role in shedding important light on this issue and those impacted, taking action by encouraging members of Congress to hold USCIS accountable, and sharing stories of the change’s implications on their clients. Our collective efforts have been crucial to the reversal of this policy.

AILA is continuing to monitor this reversal and its implementation, and will update members with additional information as it is provided.

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September 11, 2019

On September 11, 2019, the House Committee on Oversight and Reform held a hearing entitled "The Administration's Apparent Revocation of Medical Deferred Action for Critically Ill Children." Among the witnesses were two AILA members and two AILA member clients. Watch a video with AILA member Professor Shoba Wadhia and AILA New England Chapter Chair Mahsa Khanbabai discussing the implications of USCIS's change in policy as well as the hearing, or watch the full hearing.

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September 2, 2019

On September 2, 2019, USCIS announced that it will reopen non-military deferred action cases that were pending on August 7, 2019. USCIS indicated that letters will be sent this week re-opening these cases for adjudication. USCIS further confirmed that individuals with denied requests that were pending on August 7, did not have pending removal orders and have not been made a target for deportation.

AILA continues to urge USCIS to fully reverse this policy and once again accept and adjudicate non-military deferred action requests.

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August 29, 2019

AILA has learned that ICE has indicated to Senator Ed Markey’s (D-MA) staff that this change was exclusively a USCIS decision and that it does not impact ICE or its policies. This confirmed an earlier report from an ICE official indicating that the agency was not informed by USCIS that it would stop processing non-military deferred action requests. ICE further confirmed with Senator Markey’s office that it does not consider deferred action requests until the individual has been through removal proceedings and has an order of removal and that it does not intend to further change its policy, even considering this change in USCIS policy.

It is unclear whether USCIS will be issuing NTAs for those who received denial notices or how, if at all, it will be cooperating with ICE concerning the sharing the names of the individuals impacted by this change. AILA will continue to advocate on and monitor this issue and keep members apprised of any new information.

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August 23, 2019

AILA National and the USCIS Field Operations Liaison Committee are alerting AILA members that USCIS has stopped accepting and adjudicating applications for deferred action for non-military applicants. Over the last week, AILA members in multiple states have received denial notices from USCIS for pending deferred action applications, including those scheduled for interviews and those with Requests for Evidence pending. Each notice in some way relays that USCIS is no longer adjudicating these applications for deferred action except for certain military members, veterans, enlistees, and their families. Several denial letters also include a paragraph stating that the applicant must leave the United States within 33 days of the date of the letter, or else USCIS may issue an NTA and place the individual in removal proceedings.

AILA National has confirmed with USCIS that this change is in fact in place. According to USCIS:

USCIS field offices will no longer consider non-military requests for deferred action, to instead focus agency resources on faithfully administering our nation's lawful immigration system. This redirection of agency resources does not affect DACA or other deferred action requests processed at USCIS service centers under other policies, regulations, or court orders (such as VAWA deferred action and deferred action related to the U nonimmigrant status waiting list). As deferred action is a type of prosecutorial discretion used to delay removal from the United States, USCIS will generally defer to the DHS component agency responsible for removing individuals from the United States - U.S. Immigration and Customs Enforcement (ICE) - to make most non-DACA, non-military deferred action determinations.

The agency further confirmed that this change became effective on August 7, 2019, and that no public notice had been previously provided. USCIS has directed local field offices to inform the public of the change on an individual case by case basis. USCIS also confirmed that all non-military deferred action requests made before or after August 7, 2019, that remain pending with a local USCIS office are included in this change and will be denied.

See redacted examples of these notices from different USCIS field offices. AILA will continue to apprise members of any additional information and next steps on this issue.

Cite as AILA Doc. No. 19082334.