On June 29, 2018 the Department of Homeland Security announced a new policy on the issuance of Notices to Appear (NTAs) in Removal Proceedings. Issuance of an NTA is the first step in the process of removing (deporting) a non-US citizen from the U.S. The new policy has potentially far-reaching consequences for employment-based and family-based applicants for adjustment of status to permanent resident whose applications are denied, as well as for applicants or beneficiaries of non-immigrant visa petitions or applications whose cases are denied.
Under previous policies and practices in this area, the US Citizenship and Immigration Services (USCIS) has always been able to refer certain types of denied cases to Immigration and Customs Enforcement (ICE) for initiation of removal proceedings, but USCIS had considerable discretion not to do so except in cases involving criminal aliens or persons who posed a danger to the public. Under the new policy, USCIS Service Centers and local USCIS offices now have the authority to directly issue Notices to Appear and they have only very limited discretion not to do so in cases where denial of a petition or application leaves the non-citizen foreign national without underlying legal status in the U.S.
Examples of cases where USCIS is now required to issue NTAs (except in very limited circumstances) include:
- Denials of applications for adjustment of status to permanent resident (I-485) where the applicant has not retained independent underlying immigration status. Realistically, only applicants who hold H-1B or L-1 status that still remains in effect at the time of denial of the I-485 application would remain in underlying valid status—and only if the reason for denial of the I-485 does not implicate the validity of the H-1B or L-1 status (or accompanying family members’ H-4 or L-2 status). Other applicants, who had applied for adjustment of status from most types of non-immigrant status (e.g., F-1 students; B-1/2 visitors; O-1; E-1/2/3; J-1s, etc.) are not considered to still hold such status by virtue of applying for adjustment of status; and therefore denial of adjustment of status renders them without legal basis to remain in the U.S.
- Denials of applications to extend non-immigrant status or to change non-immigrant status where the earlier status has already expired or a previous petitioner has revoked their petition authorizing the earlier status. Examples would include applications for change of status from F-1 to H-1B where the H-1B petition is denied and the previous F-1 status has expired; applications to extend H-1B or L-1 status where the previous status has already expired at the time the denial decision is made; and applications for ‘change of H-1B employers’ where the earlier H-1B status has been denied or where the beneficiary is no longer maintaining valid stats with the earlier employer. Applicants for extension of H-1B or L-1 status are allowed to continue working for up to 240 days while a timely-filed request for extension is pending, but if the extension is denied, then that permission to continue working is no longer in effect. USCIS would issue an NTA in such a case. In an ‘H-1B change of employers’ case, if the beneficiary’s earlier H-1B employment has terminated (for example, if the beneficiary was laid off or if the beneficiary had resigned from that employment and joined the new employer on the basis of a filing receipt) and USCIS determines that the beneficiary is no longer maintaining the earlier status, then an NTA would be issued. It is true that the “60-day Grace Period” authorized by regulations may ameliorate such cases if the denial comes within that grace period; however, it is difficult to say presently how astute USCIS will be in recognizing that the grace period may still be in effect.
- Denials of applications for naturalization as a U.S. citizen where the case is denied for lack of good moral character due to a previous criminal offense and it is determined that the applicant is removable. Other denials of N-400s due to fraud or other activities for which the applicant is removable might also be subject to issuance of an NTA.
This new policy effectively raises the stakes in many employment- or family-based immigration cases because the initiation of Removal Proceedings has significant consequences. While certainly most cases that are filed will continue to be approved and not denied, the current restrictive attitude and high degree of scrutiny by USCIS has increased the possibility that some cases could be denied—and per the new NTA policy such eventuality would result in swift initiation of removal proceedings. Once an NTA has been issued, the departure of the foreign national from the U.S. except under a grant of so-called “Voluntary Departure” authorization by USCIS or the Immigration Court, is considered to be a “self-deportation”, and the foreign national is not permitted to re-apply for admission to the U.S. for five years, unless a special Permission to Re-Apply has been granted. While initiation of Removal Proceedings may be swift, the actual opportunity to contest removal or to apply for Voluntary Departure may be slow in coming due to Immigration Court backlogs. Foreign nationals under Removal Proceedings would be effectively stuck in the U.S. for some period of time, but would lack permission to be employed while awaiting resolution of their cases.
Some steps can be taken to try to avoid the likelihood of a denial that would call for issuance of an NTA:
- All applications and petitions should be prepared carefully and fully documented to avoid the chances of denial. Where an applicant or beneficiary holds underlying status that will remain valid during the pendency of the application or petition, this should also be well documented.
- Extensions of stay should be filed as early as possible. The regulations generally allow extensions of work-related non-immigrant status up to six months before expiration of the earlier status. Early filing may help reduce the risk that a decision would be made after the earlier status had already expired.
- Where authorized by USCIS, employers should consider using Premium Processing to drive a quick approval of the petition. The concern has been expressed, however, that USCIS might curtail the option to use Premium Processing if they are unable to handle the workload that increased use of this option might bring.
- H-1B ‘change of employer’ beneficiaries should consider remaining with their current employers, if they are able to do so, until the new employer’s petition has been approved. While the rules continue to allow the foreign national to join the new employer on the basis of the new employer’s having filed a petition, in deciding whether to exercise this option employers and H-1B beneficiaries should consider the potential likelihood that USCIS might not ultimately approve that particular H-1B petition, both with respect to the merits of the H-1B itself and with respect to the beneficiary’s prior maintenance of status. Using consular processing rather than ‘change of employer/extension’ provisions might be a better alternative in some cases.
Realistically, the new NTA policy discussed above will not be seriously ‘in play’ in most applications and petitions where the legal criteria for approval of the case are met and documented in the filing. However, it will be prudent to assess each case carefully to anticipate as best as possible whether the potential for denial exists, and to take protective measures where possible to avoid the issuance of an NTA.
Finnan, Fleischut & Associates will continue to keep our clients advised of important developments in this area. If you have specific questions about how these developments affect a current or possible future situation, please contact us.