On September 26, 2018, USCIS quietly announced that it will be implementing the June 28 updated guidance on issuance of Notice to Appears (NTAs). This will be an incremental roll out, with the new memo being applied to different types of cases at different stages. Effective October 1, 2018, the memo will be applied to “status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.” According to the bulletin, the new guidance will not be implemented with respect to employment-based and humanitarian applications and petitions at this time. The announcement also makes clear that USCIS will continue its current practice for NTAs regarding applicants with criminal records or where there are fraud or national security concerns.
As previously discussed, the new guidance on the issuance of NTAs is a radical departure from previous policy. Under the new scheme, those who are out of status are particularly exposed if they choose to apply for a benefit with USCIS. To illustrate: an individual who has overstayed his/her visa, applies for adjustment of status, and is denied, will now be placed into removal proceedings by USCIS, which has traditionally carried out its role of adjudicating benefits. Similarly, an individual who overstays his/her visa awaiting an extension request, and is denied, will now be placed into removal proceedings. Interestingly, the announcement does indicate the following: “USCIS will send denial letters for status-impacting applications that ensures benefit seekers are provided with adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA.” This is somewhat at variance with the language of the actual memo, which does not appear to provide for a window in which denied applicants are afforded time to depart before an NTA is issued. How this will actually play out remains to be seen, as the policy is obviously new. In any case, this regimen will likely corral more people into a notoriously overburdened court system in danger of losing its independence. Given the potential consequences, any individual without legal status would be well advised to seek counsel before applying for an immigration benefit.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship, nor should it be relied upon as legal advice in lieu of consultation with an attorney.