USCIS Policy Memo on Issuance of Notice to Appear in Immigration Court

USCIS has announced an important and disturbing change in how the agency will deal with denied applications for immigration benefits such as requests for extension of stay and change of nonimmigrant status.  Under the new policy set forth in a Memorandum issued June 28, 2018, when the subject of a denied application has no valid underlying immigration status, USCIS is instructed to issue a Notice to Appear (NTA) in Immigration Court to face removal proceedings.

For example, an applicant already in H-1B status working on the basis of a timely filed and now pending application for extension of stay would not have a valid underlying status if the petition extension is denied.  The same would be true for an applicant for Adjustment of Status whose prior nonimmigrant status expired after the I-485 was filed.

This change does not affect applicants who have a valid underlying status.  For example, an applicant who is maintaining valid F-1 OPT status and has time remaining and who is seeking a change to H-1B status would not be affected by the new policy.

Previously, if an immigration benefit was denied and an applicant was then unlawfully present in the U.S., the applicant would need to depart the U.S. immediately but NTAs were not routinely issued nor were any bars usually imposed if they departed before the accrual of 180 days of unlawful presence.

Once an NTA is issued, the matter becomes a removal case in Immigration Court.

Even if the applicant departs from the U.S. immediately, he/she will eventually be called to appear before an Immigration Judge.  If the applicant fails to appear, having already left the U.S., he/she may be ordered removed in absentia.  Once issued, this will trigger bars for reentry that may or may not be waivable.

USCIS offices were given until July 28 to come up with plans to implement this new policy.  Perhaps the government will recognize that this approach unduly burdens the already backlogged Immigration Courts, in addition to causing unnecessary hardship to petitioners and applicants and will moderate or scale back this plan.  But so far, we have no reason to think this is likely.