Increased enforcement by U.S. Immigration and Customs Enforcement (ICE) at USCIS field offices has raised significant concerns for adjustment of status applicants. Recent reports confirm that individuals—particularly in high-risk categories—have been detained during or immediately following family-based immigration interviews at USCIS. Applicants, especially those with complex immigration histories, must be prepared for the possibility of enforcement actions.
This article outlines critical steps to take before and during a USCIS interview, how to identify risks, and what to do in the event of ICE involvement.
1. Know If You Are at Risk
Certain factors increase the likelihood of ICE detention at a USCIS interview:
- Prior removal orders (deportation orders) make you highly vulnerable.
- Criminal history, including DUI or older convictions, may trigger enforcement, especially if they involve aggravated felonies or crimes involving moral turpitude.
- Fraud or misrepresentation findings or suspicions from past immigration filings.
- Previous adverse immigration decisions (e.g., denied applications, revoked visas).
- Unlawful status or entry without inspection (EWI), even if you are eligible to adjust status.
Your adjustment eligibility does not shield you from enforcement.
2. Preparation Before the Interview
With an Attorney:
- Comprehensive background review: All immigration filings, criminal history, and any pending or dismissed cases must be reviewed.
- Review FOIA results (Freedom of Information Act) for undisclosed records or prior enforcement actions.
- Gather supporting documentation: Evidence of good moral character, family ties, and community involvement may assist in post-detention relief.
- Prepare waivers in advance, if applicable.
- Discuss emergency protocols: Clients should designate a contact person in case of detention.
Strategic Considerations:
- In some cases, attorneys may recommend attending with only the petitioner, especially if the beneficiary is at high risk.
- Postponement may be prudent if new legal issues arise before the interview.
3. Red Flags During the Interview
Be alert to signs of potential ICE involvement:
- The interviewing officer types extensively or appears to be communicating in real time.
- The officer unusually scrutinizes prior arrests or immigration violations.
- The petitioner is asked to leave or wait elsewhere.
These may indicate coordination between USCIS and ICE.
4. If Detained at the Interview
- You have the right to legal representation, but attorneys cannot prevent detention during the interview.
- ICE officers may detain individuals immediately before or after the interview, and transport them to a detention facility.
- In many cases, the Form I-130 may still be approved even after detention.
5. Post-Detention Legal Options
- Bond and parole: Depending on your immigration history and current classification, you may be eligible.
- Motions to Reopen or Stay of Removal: Especially critical if a prior removal order exists.
- Immigration Court proceedings: Adjustment of status may continue there unless you’re an “arriving alien” or entered under ESTA, where USCIS retains jurisdiction.
- Federal court litigation: Mandamus or habeas corpus may be necessary in prolonged detention or delay cases.
6. Final Thoughts
Each case is fact-specific, and preparation must be thorough. If there is any chance you may be at risk of ICE enforcement, consult with an experienced immigration attorney before attending your USCIS interview. Your attorney can help assess risks, advise on rescheduling, and prepare emergency response plans.
Stay informed. Stay prepared.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult with a qualified immigration attorney regarding your specific case.
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SIANA J.MCLEAN is a Partner at Richards and Jurusik, who practices immigration law with a focus on asylum, removal defense, and immigration court matters. She has extensive experience representing clients before U.S. Immigration Courts and the Board of Immigration Appeals. (Full Bio)
