New NTA Guidance Means More Foreign Nationals will be Placed in Deportation Proceedings
On July 5, the day after we celebrated our country’s birthday, U.S. Citizenship and Immigration Services (USCIS) issued new guidance that will place many denied applicants in deportation proceedings. A Notice to Appear (NTA) is a document given to a foreign national that instructs them to appear before an immigration judge on a certain date. The issuance of an NTA commences deportation proceedings. Under the new guidance, USCIS officers will now issue an NTA for a wider range of cases including where an applicant is denied an immigration benefit and is unlawfully present in the United States.
This means that we must be hyper-vigilant about filing for extensions of status as early as possible, request consular notification as opposed to extensions or changes of status, and maintain other avenues of status if possible. This is one of several new directives from USCIS that negatively affect the ability of foreign nationals to live and work in the United States. Please contact our office to schedule an appointment if you have any questions about how this may affect your situation.
Another Memo Means More Cases Denied Without Notice
USCIS issued another guidance that further curbs immigration. USCIS officers used to issue a request for more evidence or a notice of intent to deny before denying an application or petition. As of September 11, 2018, the officers who review visa applications or petitions have the discretion to deny requests, without first seeking additional evidence that might be needed to complete an application, or issuing a notice stating the intent to deny a request. This means the government can deny visas if applications do not include all the necessary information when submitted. It also lets the government deny visas without specifying what additional information would have been necessary to complete the application.
This new memo rescinds a 2013 guidance that outlined the process for requesting more information or issuing a notice about the intent to deny a visa request. The process of requesting more information effectively granted applicants more time to complete applications if something was missing. It also created a constructive dialogue between immigration lawyers and USCIS on applications for visas. This change combined with the new NTA policy will greatly impact the ability of foreign born workers to remain in the U.S. The memo came about one week after USCIS announced it would start initiating removal proceedings, which can lead to deportation, against visa applicants who lack immigration status when their visa applications are denied.
Long Delays for Citizenship Applications
The National Partnership for New Americans’ report documented an 88 percent increase in the citizenship application processing backlog since 2015. The report found that after applicants have submitted a 21-page naturalization application, paid a $730 application fee, and provided fingerprints for a background check, they could wait as long as 20 months for their applications to be processed. Not very American of us.
Reminder: Major Changes to Accrual of Unlawful Presence Policy
As we noted last month, beginning August 9, 2018, a new policy will beginchanging the way foreign students and exchange visitors accrue unlawful presence, which is how the U.S. defines time an individual spends in the country after his or her period of authorized stay has ended. Previously, accrual of unlawful presence would begin after an immigration judge or officer had found that a status violation occurred, or after the last day of admission when a length of time was specified. Now, the individual will begin accruing unlawful presence the day after an event determined to be a violation of status occurred. Unlawful presence can come with major consequences. If an individual is unlawfully present in the United States for more than 180 days, but less than one year, he or she is barred from re-entering the United States for three years. If an individual is unlawfully present for over one year, he or she is barred for ten years. The new policy will also apply to dependents of F, J, or M visa holders, in that if it is determined the F-1 student has violated status, the F-2 dependent would also be considered unlawfully present for the same duration of time.
Overall, this is a harsh and punitive policy that will have major repercussions on our nonimmigrant population. These determinations are notably harsher for nonimmigrants who have spent time in F, M, or J status. If found to be “unlawfully present,” possible consequences include revocation of status, inability to apply for permanent residence, and being barred from the United States. If you have any questions on whether this new policy will affect you, please do not hesitate to contact our office.
DOS Released August Visa Bulletin
The Visa Bulletin includes “Application Final Action Dates” and “Dates for Filing Applications” for the family- and employment-based categories. The DOS Visa Bulletin for July 2018 is available HERE.
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