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On July 5, 2018, the United States Citizenship and Immigration Services (USCIS) published a new Policy Memorandum regarding procedure for cases where an adjustment of status application is denied. An adjustment of status is when an individual wish to extend their stay in the United States because they have gotten married to a U.S. citizen, accepted a job, or started a business. To learn more about adjustment of status, please click here.

In this new policy memorandum, if an adjustment of status application is denied, USCIS will issue the foreign national a Notice to Appear (NTA). An NTA is a document that is issued to individuals to place them in deportation proceedings and directing them to appear before an immigration judge. Previously, the issuing of NTA’s have been handled by the Immigration and Customs Enforcement agency (ICE). Also, previously, if an application for immigration benefits is denied, the foreign national might be able to depart the U.S. quickly, and either remain abroad or obtain approval for another visa that would enable them to return to the U.S.

Now, USCIS will issue an NTA on its own initiative to place a person in removal proceedings upon denial of an application or petition for immigration benefits if the person is deemed removable at the time of the denial. Once an NTA is issued, this person is now obligated to remain in the U.S. and appear before an immigration judge. If the individual fails to comply with the NTA, a deportation order will be issued against the person, and the failure to appear for removal proceedings carries a 5-year bar on re-entry to the U.S. Having a removal order on your record will also decrease the chance of being approved for another visa to return. On the other hand, if the individual remains in the U.S. to contest the removal proceedings, one that can take up to years to complete due to the backlogs in immigration court, they would be considered “unlawfully present” during that time. If the person prevails in the removal proceedings, their status will be restored, and the unlawful presence will be wiped away. If they lose, they will be subject to a 10-year bar on re-entering the U.S., depending on much unlawful presence was accrued by the time. The cancellation of removal process is complicated and can only apply for certain individuals. To learn more about the cancellation of removal, please click here.

This move would potentially sweep tens of thousands of individuals into removal proceedings, including those who have lived and worked lawfully in the U.S. and could seek appellate review or depart voluntarily if their application is denied. It can include workers who have fully complied with immigration laws who may unexpectedly be informed that they no longer qualify for the visa status they have legally held for years. For example, an H-1B professional whose petition for initial or extended H-1B status that is ultimately denied is likely to be placed into deportation proceedings under this policy. USCIS have already issued changes to unlawful presence rules for students and exchange visitors, for more information on that, please click here.

This move transforms an agency that was created to focus on adjudicating immigration benefits and welcoming new immigrants into the United States into yet another Department of Homeland Security enforcement tool. Foreign nationals should take all possible precautions to ensure that their work visa petitions are filed and adjudicated to completion before their existing status expires, so that if the petition is denied, the person will still be in another status and can avoid an NTA.

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