Drastic changes in USCIS approach to adjudicate cases will result in enforcement grip
On June 28, 2018, USCIS released a policy memo substantially increasing USCIS’s responsibility to issue Notices to Appear. A Notice to Appear is a charging document that begins removal proceedings, requiring the recipient to appear before an immigration judge. Previously, USCIS would only issue NTAs if they suspected fraud.
The June 28, 2018 memo mandated that USCIS issue a Notice to Appear when an application or petition is denied, if the applicant/petitioner is “not lawfully present in the United States” at the time of the denial.
As an example of what would have happened under the June 28, 2018 memo: An applicant entered the U.S. on an F-1 visa. After they applied for an Adjustment of Status (I-485), they let their F-1 status lapse, because as an I-485 applicant, they have a legal status in the U.S. while the application is being adjudicated. If their I-485 is denied, however, USCIS would be required to immediately issue an NTA, putting the applicant into removal proceedings without being allowed, as was customary, time to either appeal the decision or leave the U.S. of their own accord.
Because this was such a monumental shift in policy, however, USCIS was drastically unequipped to fully institute this policy and it was not immediately put into effect. USCIS did not reveal how they planned to implement this policy until September 27, 2018, when USCIS announced that they will take an “incremental approach” to implement the June 28, 2018 memo.
Starting on October 1, 2018, USCIS may (but is not required to) issue NTAs on denied status-impacting applications, such as the I-485 Application to Adjust Status and I-539 Application to Change/Extend Nonimmigrant status, if the applicant is not lawfully present when the application is denied. These changes apply as of October 1, 2018, and are will be applied regardless of when the petition or application was filed.
Generally, USCIS will not issue an NTA immediately upon the denial of an application but will largely wait until the expiration of the appeal period. If an NTA is issued before or during the appeal period, and the appeal is successful, USCIS will work with ICE to make them aware of this. Once an NTA is file, however, it cannot be canceled.
Fortunately, the new policy memo will not be implemented regarding employment-based petitions (including I-129s) or humanitarian applications at this time. Now, more than ever, it is crucial to consult an experienced and engaged immigration attorney. Immigration policy is changing rapidly, and it is imperative to be aware of any risks you may encounter when seeking immigration benefits.