07/18/2018
New USCIS Notice to Appear (NTA) Policy
USCIS issued an updated guidance on June 28, 2018 enabling the agency to issue a Notice to Appear (NTA) directly upon discovery of a status violation or eligibility for removal. An NTA acts as a summons to immigration proceedings in federal court, and a foreign national who receives an NTA may not leave the US until the case is resolved. Failure to attend immigration proceedings may result in a 5-year bar against entry to the US.
Under the update policy guidance, the following instances may result in the issuance of an NTA:
The foreign national committed fraud, misrepresentation, or received public benefits.
The foreign national is arrested, charged, or sentenced with a criminal offense.
USCIS denies an N-400 (citizenship application) on character or criminal grounds.
Upon denial of an application/petition, an applicant is unlawfully present in the US.
In the final scenario above, USCIS may issue an NTA immediately upon denial of an application or petition for immigration benefits, should that denial place the foreign national without legal status.
Additionally, USCIS issued another policy memo on July 13, 2018 that grants USCIS discretion to deny an application, petition, or request outright, without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).
Following implementation of these policies, an Applicant who files for an extension of nonimmigrant stay, a change of nonimmigrant status, or an adjustment of status application/petition, will become unlawfully present should USCIS issue a denial if he or she does not have another visa status to rely on at the time of the decision receipt. As a result of this denial, the Applicant may subsequently receive an NTA from USCIS.
In light of this recent policy guidance from USCIS, we recommend the following practices:
1. File nonimmigrant visa renewals as early as possible, with premium processing
Nonimmigrant visa renewals can be filed up to 6 months in advance of the expiration date of the current petition. Premium processing should be included when possible.
2. Consider sponsoring green cards as early as possible
Employers should consider sponsoring green card for foreign nationals as early as possible to reduce the risks of filing the consequent nonimmigrant visa renewal too close to the expiration date.
3. Consider filing for Consular Processing
Employees who may have a gap or violation in status maintenance, or have a currently pending petition should consider applying for Consular processing of their visa, rather than extension or change of status.
Please contact the attorney/paralegal team for your case with any questions.
