As published in the Immigration Daily on March 17, 2025
With a blizzard of immigration actions going far beyond a crackdown on criminal aliens, President Trump is exploding the hopes of those who voted for him thinking that he would only expel the criminal element of the immigrant population. If he obtains the $175 billion in budget funding for his immigration program included in the passed Senate resolution in February, he would have the monies required for mass deportation.
Not only are the undocumented at risk of removal, but also those who do not have permanent resident or US citizenship status as seen in the present actions of the administration. A small look at some recent actions of the administration shows that even those with forms of legal status have risk of being ensnared in Mr. Trump’s recent actions:
1. Social media screening is coming back in a big way in a Federal Register (March 5, 2025, Vol. 90, No. 42, pg. 11324) https://www.federalregister.gov/documents/2025/03/05/2025-03492/agency-information-collectio 60 day notice for comment promoting tighter vetting of applications by USCIS in fulfillment of Executive Order 14161, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” directing implementation of uniform vetting standards collection of information for rigorous vetting and screening of all grounds of inadmissibility or bases for the denial of immigration-related benefits. Social Media Identifier(s) on immigration forms and/or information collection systems are to be collected from certain populations of individuals on applications for immigration-related benefits for enhanced identity verification, vetting and national security screening and inspection.
This will delay the time for adjudications as USCIS officers and/or administrative staff will spend countless hours poring over applicants’ social media accounts. An idea of the immensity of such screening is USCIS’ estimate of the size of the populations to be screened in each application category – I-485 Application to Register Permanent Residence or Adjust Status, 1,060,585; I-131 Application for Travel Document, 1,073,059; N-400 Application for Naturalization 909,700; I-589 Application for Asylum and Withholding of Removal 203,379; I-751 Petition to Remove Conditions on Residence, 140,000; I-590 Registration for Classification As Refugee, 106,200; I-730 Refugee/Asylee Relative Petition 13,000; and I-829 Petition by Entrepreneur to Remove Conditions, 1010.
2. Enhanced vetting not only affects those requesting immigration benefits of USCIS in the US, but also nonimmigrant visa holders entering the country by US Customs and Border Protection inspectors. A recent article, “Extreme Consistency: How Attorneys Can Prepare for Extreme Vetting at the Border,” by Dan Berger, Brian Halliday and Stephen Yale-Loehr Extreme Consistency: How Attorneys Can Prepare for Extreme Vetting at the Border pointed to two recent refusals of entry into the US – one a H-1B computer scientist in which CBP called the employer contact on the H-1B petition who could not remember the details or knew that the person was flying that day with the result that the scientist received expedited removal; and the second a PhD engineering student from China who received a F-1 visa, and upon CBP finding that the resume submitted at the consulate was shortened from the longer version she had on her laptop, had her withdraw the request for admission and return to China to apply for a new F-1 visa stamp. The authors upon speaking with three levels of CBP officers learned that CBP has new instructions to vigorously scrutinize applicants for admission to the US.
So it appears that travel in and out of the US for nonimmigrant visa holders will be tinged with danger and nonimmigrants in the US may wish to take less frequent trips and, if on working statuses, coordinate international trips with their employers to ensure that the employer’s signatory on the petition refreshes himself or herself with the nonimmigrant’s responsibilities.
3. The new NTA policy announced by USCIS on February 28, 2025 in Policy Memorandum PM-602-0187, “Subject: Issuance of Notices to Appear (NTAs) in Cases Involving “Inadmissible and Deportable Aliens” Policy Memo_Template is a step back to the past in which unfavorable decisions by the agency to applicants who had no legal status to fall back on were usually accompanied by a notice to appear in the immigration court for removal proceedings. Other than for denied cases involving criminal offenses, fraud or misrepresentation, the memo says that “USCIS will issue a new NTA where, upon issuance of an unfavorable decision on a benefit request, the alien is not lawfully present in the United States.” For employment-based petitions, NTA’s will be issued to beneficiaries where the decision on the petition is unfavorable, the beneficiaries are not lawfully present in the US or otherwise removable; and the beneficiary is a signer on an I-129 petition for nonimmigrant worker such as E-1/E-2 treaty traders and treaty investors, H-1B beneficiary owners, and O-1 beneficiary owners.
Prosecutorial discretion to withhold issuing NTA’s is limited and “should only be exercised in very limited and compelling instances and on a case-by-case basis after considering all USCIS and DHS guidance, DHS’s enforcement priorities, the individual facts presented, and any DHS interests implicated…”
So this will seemingly make maintaining nonimmigrant status a better alternative than simply forgoing extensions of such in favor of applying for and receiving EAD’s (employment authorization documents) which by themselves do not confer status.
We are returning to a time in which interviews in the field offices of USCIS may turn out to be harrowing experiences once again. Questions on whether interviewees may be detained in their visits to the field offices may once again be prominent. Many legacy INS and USCIS officers have not wanted to make on the spot unfavorable decisions in the past for sake of their own safety and fear that physical confrontations might result. On the other hand, the new policy may bring back another past method of handling such situations with the involved officer asking the applicant to wait and calling for officers attached to ICE to come before stating the decision and having them detain the applicant – an enhanced the risk to the applicant if the field office also contained an ICE section.
4. Expedited removal for parole program participants and those under regular removal proceedings. The Trump directive on expedited removal as announced by Caleb Vitello, Acting Dir., ICE, 1/23/25, https://www.dhs.gov/sites/default/files/2025-01/25_0123_er-and-parole-guidance.pdf, is fairly sneaky in directing ICE officers to review and consider in exercising enforcement discretion whether to initiate expedited removal against those who would be subject to it (not in the US for two years) by terminating all regular removal proceedings and/or any active parole status, and look for those whose paroles were automatically ended under Trump’s memorandum [terminating the Cuban Haitian Nicaraguan Venezuelan parole program]. Even for those who have applied for asylum or plan to do so in a timely manner, the directive says that the expedited removal process includes asylum screening, which it says is sufficient to protect the reliance interest of these parties.
5. In an unrelased fast track removal memo circulated at ICE on February 18, the Trump administration is directing ICE officers to identify immigrants who can be rapidly removed from the US without a court hearing through expedited removal. The memo that has been reported by various sources including AILA, targets low hanging fruit, some categories of whom hold some form of status and others (arriving aliens) who may under certain circumstances be eligible for adjustment of status to permanent residence https://www.washingtonpost.com/immigration/2025/02/28/ice-expedited-removal-mass-deportation/; https://english.gijotina.com/ice-memo-details-how-officials-will-try-to-deport-more-than-1-million-migrants-migrants/; Reuters Releases Updated Guidance From ICE on Expedited Removal:
- Persons previously released by CBP and have not applied for asylum who include paroled arriving aliens, aliens issued a CBP “notice to report” (NTR), and aliens processed for parole with alternative to detention (ATD) or parole with conditions (PWC).
- Arriving aliens who showed up at a port of entry that CBP determined to be inadmissible and previously released as long as they were inadmissible because of fraud or willful misrepresentation or lack of valid immigration documents. To this category, the memo says that there is no time limit on the ability to process under expedited removal.
- The memo further states that persons who won withholding of removal (proving fear of persecution or past persecution by satisfying a standard of probable rather than merely well-founded fear of persecution) should be considered for expulsion to another country.
- Also that immigration officers should rearrest immigrants that they have had to release in the past because they could not deport them since their homelands refused to take them back with the memo saying that the administration has made significant gains in having those countries take them back and also taking into account the potential for third country removals.
Expedited removal as expanded under Mr. Trump targets people who have been here for two years or less in any part of the US. Previous rollback under the Biden administration allowed its use for individuals caught within 100 miles of the border and within two weeks of entry. For those arriving legally through ports of entry lacking immigration documents or having misrepresented themselves/arriving aliens, expedited removal has generally only been used at a time proximate to entry in the author’s understanding and experience although it has been more used against people coming in under visa waiver programs who legally give up their rights to a hearing in writing by entering under a 90 day visa waiver program instead of through visa.
This is just the beginning of President Trump’s four years in office, and the immigrant communities – even those with some form of legal status at present – can expect many more shocks in the future. Everyone other than permanent residents and US citizens should be careful about their immigration statuses, not take unnecessary travel risks, and consult legal counsel before taking any steps that could jeopardize their statuses.