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Recent USCIS Guidance Memo on NTAs Will Impact Individuals Who Become Unlawfully Present Following Denial of a Petition or Application

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Recent USCIS Guidance Memo on NTAs Will Impact Individuals Who Become Unlawfully Present Following Denial of a Petition or Application

July 16, 2018

On July 5, 2018, the USCIS published new guidance, dated June 28, 2018 regarding the issuance of Notices to Appear (NTA).  An NTA is a charging document that is issued to foreign nationals who are deemed “removable” from the United States. People who receive NTAs must appear before an immigration judge to determine whether they should be removed from the United States (which carries significant penalties), or whether they are entitled to some type of relief from removal, allowing them to remain in the United States legally.

For reasons outlined below, this new guidance poses risk to employment-based nonimmigrants following all U.S. immigration laws and regulations who previously did not face such an extreme and burdensome outcome.

The new guidance generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

  • Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States. This scenario is of particular concern to some employment-based nonimmigrant visa holders whose work authorization may expire while an extension request is pending, and find themselves after the long adjudication period without status when that extension is denied due to due to changing USCIS policies, such as USCIS’ rescission of its prior guidance directing USCIS officers to give deference to prior determinations when adjudicating employment-based extension petitions. Likewise, an applicant for adjustment of status whose L-1 or H-1B status has expired and whose adjustment application is denied, may be deemed unlawfully present following the denial.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
  • DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

The new USCIS NTA policy is a dramatic change from more than a decade of prior practice which gave enforcement functions to Immigration Customs and Enforcement (ICE), while allowing USCIS to focus on the adjudication of immigration benefits. 

Following the new policy, USCIS processing times will likely be further lengthened. In addition, a large number of individuals who pose no security risk and who have been working lawfully in the United States for years will be thrust into the already overburdened immigration court system instead of appropriately being provided an opportunity to get their affairs in order and depart the United States.

Weaver Schlenger LLP recommends that employers file for extensions of nonimmigrant status well in advance of expiration dates, consider premium processing which will provide for faster adjudication, discuss any travel while extensions are pending in advance with counsel, and continue to file for extensions of nonimmigrant status even during pendency of adjustment of status applications, to avoid any instances of unlawful presence, leading to an NTA.

(The information above is excerpted from Talking Points provided by the American Immigration Lawyers Association.)

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