New USCIS Policy Regarding Notice to Appear

On 07/05/2018, USCIS released a memo indicating it will issue Notices to Appear (NTA) in various scenarios, including when an applicant/beneficiary is no longer lawfully present by the time a petition/application is denied.  A NTA (DHS form I-862) compels the affected foreign national to appear in immigration court for removal proceedings.

This new policy will affect professional workers, students, families and others whose petitions/applications for change of status or extension of stay are denied after their I-94 has expired, even if the beneficiary/applicant was in lawful status when the petition/application was filed.  Rather than allowing such individuals the opportunity to depart the U.S. on their own, USCIS will now compel them to appear in immigration court where a judge will determine whether they should be removed from the U.S., whether they are eligible for relief allowing them to remain in the U.S., or whether they should be allowed to voluntarily depart without an order of removal.

The possibility of a NTA means it is more advisable than ever to:

1. File extension of stay petitions at the earliest legally allowable date (e.g., 6 months before expiration of H, L, O status);
2. Consider premium processing if the petition/application will not be adjudicated before the beneficiary/applicant’s current status will expire; and
3. Maintain nonimmigrant status while one’s Adjustment of Status application (I-485) is pending, even if the applicant has been granted Employment Authorization Document (EAD).

ILG will continue providing updates as this policy is put into practice in the coming months.  Don’t hesitate to reach out to your ILG contact if you wish to discuss best practices such as whether to file petitions/applications sooner and whether to opt for premium processing (for cases in which PP is available).