Effective June 28, 2018, USCIS's new guidance regarding situations in which the agency may issue a Notice to Appear (NTA) will begin to affect a wide range of scenarios, including employment based cases.
What is an NTA?
A Notice to Appear (NTA) is a charging document which places an individual into immigration court proceedings (removal/deportation). Previously NTAs were issued in cases where there was a national security concern, criminal conduct, fraud or misrepresentation, etc. USCIS would refer such cases to Immigration and Customs Enforcement (ICE), to make the determination regarding whether removal proceedings should be initiated.
The new policy memorandum expands USCIS's authority to initiate removal proceedings upon the denial of an application for an immigration benefit.
Categories of individuals who will be affected
Any individual not lawfully present when an immigration benefit is denied can be issued an NTA by USCIS. For example, if someone is in the US in H-1B status and files to extend their H-1B status, but their status expires while the case is pending and the case is eventually denied. In this scenario, this person may be issued an NTA by USCIS. Even if this person intends to depart the US, he/she MUST stay and appear before the immigration judge. If the person does not appear, an order of deportation may be issued. This policy makes it critical for employer to file extension applications well before the I-94 expiration date. It also makes premium processing service necessary in cases where time is of the essence.
Another example is if someone's I-94 record has expired while their green card application is pending and the application is ultimately denied. This person can be issued an NTA by USCIS and must appear in immigration court.
The backlog in the immigration court system currently encompasses over 700,000 cases. It is unclear how the system will handle this influx of additional cases.
For more examples and resources, see:
American Immigration Council BLOG on the policy: http://immigrationimpact.com/2018/07/09/uscis-guidance-immigration-benefit/
Link to the USCIS policy: https://twitter.com/GregChenAILA/status/1015270566432043009
Quartz piece: A quiet change in US policy threatens immigrants who apply for a change in status ow.ly/FxQn30kQD8N
This post is for information purposes only and should not be construed as legal advice.