On July 5th, 2018, the Department of Homeland Security granted USCIS officers with broadened authority to issue NTAs, which commence deportation proceedings. Although USCIS officers have previously been able to issue NTAs in certain limited situations, they have now been granted with sweeping new authority as to when they are able to issue such notices. What does this mean?
According to USCIS:
A Notice to Appear (NTA) is a document given to an alien that instructs them to appear before an immigration judge on a certain date. The issuance of an NTA commences removal proceedings against the alien. Under the new guidance, USCIS officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.
In accordance with President Trump’s “America First” campaign, the Department of Homeland Security is increasing its efforts to deport undocumented immigrants who have come to the United States illegally or who have overstayed their visas. As described above, USCIS is now even more directly involved in implementing the policies which are to increase deportation efforts effectively transitioning the service into another immigration enforcement front. USCIS officers have now been authorized to issue an NTA (or refer a case to ICE) when they are given reason to believe that the immigrant in question has (1) committed fraud, (2) been involved in criminal activity, and/or (3) is unlawfully present in the United States upon being issued a denial.
It is this third and final point which should be emphasized as a point of contention and cause for alarm. Previously, when a USCIS officer issued a denial, they would not usually issue an NTA if such a denial led to the immigrant’s unlawful status. As such, the immigrant or sponsor would be able to later file another application or petition in hopes of gaining an approval. Now, a denial can lead to the commencement of an immigrant’s deportation proceedings, thereby altering the immigration options for them in the future.
In accordance with this new policy guidance, we want to emphasize the importance of avoiding last minute extensions for any temporary work visas (and for the dependents of family members on such visas). Previously, a foreign worker would be able to stay in the United States while an extension was pending, and would have to leave in the case that the extension was denied. Now, the foreign worker risks entering deportation proceedings should that case arise. As such, it is best to receive an extension approval well before an immigrant’s status in the United States expires.
Moreover, in regard to immigrants filing applications or petitions while unlawfully present in the United States, it is important to highlight the risk of submitting applications or petitions to the government. As such, we urge clients to consult our office when looking to gain permanent residency or citizenship, so that we may ensure the best way to proceed forward with such cases.
Please contact our office at (212) 490 -0900 to speak with one of our experienced attorneys.
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