NSEERS Program Finally Canceled and Its Long Term Effects

May 16, 2012 by Immigration Law Attorney Lena Korial-Yonan, Esq.

The NSEERS program was established after the wake of September 11, 2001 as a way for USCIS to track Middle Easterners and nationals of countries that are linked to terrorist groups. The program required all male nationals of certain countries to appear the local USCIS office and register for the program. The problem is that many of these nationals were scared that they would be arrested for being illegally in the U.S. if they did appear at the local USCIS office. The other side of the coin is that if they did not register, then all future applications, like for the green card, will be denied because they failed to comply with the NSEERS registration.

I have personally received calls from people that were denied for the green card because they did not register with NSEERS. The usual policy in Jacksonville is upon cooperation with the local ICE office, an ICE Officer would schedule the applicant for an appointment so that he could at that time register for the program. Proof would be provided that the registration was completed and we would then contact USCIS to let them know that the applicants have now complied, even if years later, with the NSEERS program.

The good news is that effective April 16, 2012, the NSEERS program has been officially Abolished and canceled. The news that the program will be canceled has been circulating for a year or so, but now we have official news that all special registration and reporting requirements are now suspended.

The Memo issued by the Deputy Secretary officially rescinded all the previous Memos that created the NSEERS program. The Memo also states that more guidance on this issue will be released within sixty dates.

NOW WHAT HAPPENS TO PEOPLE WHO HAVE BEEN DENIED BENEFITS OR PEOPLE IN REMOVAL PROCEEDINGS BECAUSE OF FAILURE TO REGISTER WITH NSEERS?

This question is of extreme important, because there are people whose green cards have been denied because they failed to register with NSEERS or people who are in removal proceedings because they did not register with NSEERS. The USCIS Memo sets up a legal standard for how Officers are supposed to handle cases like the ones described above.

The USCIS Memo clearly indicates that Noncompliance is NOT enough on its own to deny a benefit like green card (i.e. because of a finding of inadmissibility) or place the applicant in removal proceedings. Instead, the USCIS Memo instructs the USCIS Officer to determine if the Noncompliance is "willful."

The USCIS Memo defines "willful" noncompliance as if the applicant deliberately, voluntarily or intentionally decided that he would not comply with the NSEERS registration requirements. In other words, in order for the applicant to have his noncompliance waived, he would need to show that his noncompliance was unintentional or reasonably excusable.

However, even if the noncompliance is willful, the USCIS Officers can still exercise prosecutorial discretion and "should continue" to exercise their authority in a reasonable, favorable manner to individuals. Undoubtedly, certain factors will be and should be considered by the USCIS Officers, including the applicant's criminal history (or lack thereof, I hope) and family unity here in the U.S. especially when the applicant has U.S. citizen spouse or children or other close family here in the U.S.

Of course, if the USCIS Officer determines that the noncompliance was not willful, then noncompliance with NSEERS does not trigger a presumption of inadmissibility. It is the applicant's duty to show the violation was not willful, or that if it was willful, to explain why the Officer should exercise favorable discretion and still approve the case. The standard is a preponderance of the evidence standard. The Officer is required to review the Entire record and to consider the "totality of the circumstances," which can include the applicant's explanation for his noncompliance.

If the applicant states that he willfully refused to comply, the USCIS Officer is permitted to accept that statement alone as proof of willful noncompliance.

It is now USCIS' responsibility to determine how to handle NSEERS violators, and no longer will ICE be involved in handling these matters.

WHAT DO I DO IF MY CASE WS ALREADY DENIED YEARS AGO?

The recent USCIS Memo also hints that people whose cases were denied only because of noncompliance with NSEERS may now be eligible to file a Motion to Reopen. Again, the USCIS Officers are authorized to exercise their "prosecutorial discretion" when handling the Motion to Reopen(s). In addition, while filing a Motion to Reopen may be an option, simply refilling may also be an option. If your case was denied only because you failed to comply with NSEERS, then it is a wise decision to contact an experienced immigration lawyer to look into what your options are now, given this new change in procedure. Each case is different and a close look at the details in each case is important in determining the next step(s) to take.

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