Often in the news, we see stories about undocumented applicants being arrested while attending their USCIS interviews. A lot of applicants wanting to apply for immigration benefits are worried about similar incidents happening to them. We will discuss the USCIS policies regarding to the arrest of an alien during the interview process below: ‍‍

General rule - not arresting the alien even though he/she may be in the U.S. illegally

Per USCIS policy, as a general rule, any alien who appears for an interview before an USCIS officer in connection with an application or petition seeking benefits under the INA shall not be arrested during the course of the interview, even though the alien may be in the United States illegally.  If the alien is ineligible for the benefit being sought, the interviewing officer should advise the alien that he or she will receive a written decision on the application or petition by mail.  The officer may (at the officer’s discretion) also verbally advise the alien of the anticipated nature of the decision, what the alien’s available options might be (e.g. appeal the decision, renew the application in proceedings before the Immigration Court, etc.), when the officer anticipates the decision will be mailed, etc. The alien will then be allowed to depart from the office.  

Note: This general rule applies only to adjudication scenarios. It does not apply to inspection scenarios (at ports of entry or during proceedings involving deferred inspection or completion of parole) or enforcement scenarios.

Exceptions to the general rule

In some cases, an illegal alien’s actions or situation may be so egregious as to justify making an exception to the general rule that those who appear voluntarily for an interview should not be arrested during the course of that interview. Such actions and situations include, but are not limited to:

• An alien who is the subject of an outstanding warrant of arrest for criminal violations;
• An alien who during the course of the interview assaults another party, e.g., the interviewing officer, a government clerk, a government attorney, or a co-interviewee (such as a spouse or child);
• An alien who，during the course of the interview, willfully destroys government property or commits any other crimes of such nature and magnitude;
• The alien is a threat to the safety or well-being of another party;
• An alien who is the subject of a previously-issued warrant of deportation or warrant of removal, unless the alien is seeking benefits under a provision of a law (e.g., NACARA or HRIFA) which specifically allows an alien under an order of deportation or removal to seek such benefits; or
• Any other similar action or situation, which in the view of district management, warrants placing the alien under arrest.

If an interviewing officer believes that an alien’s situation or actions fall within the guidelines, he/she shall refer the matter (through his or her supervisory chain of command) to the local Investigation Branch in accordance with established local procedures.  The actual decision as to whether to place the alien under arrest shall be made by the appropriate Enforcement Branch personnel in accordance with established procedures.  If you have any reason to believe that one or more of the above situations apply to you, it is in your best interests to consult with an experienced attorney before sending an application to the USCIS.