A person who is unlawfully present after his application, petition or request for an immigration benefit is denied may find himself in removal proceedings and eventually may possibly be deported. The U.S. Citizenship and Immigration Services (USCIS) released last week their two new policies with regard to the handling of denied applications and petitions for those seeking immigration benefits. These policy memos (PM-602-0050-1 and PM-602-0161) are referred as updated guidance to referring cases to ICE and issuance of Notices to Appear.
How are these new policy memos going to be implemented? What impact will these have on those seeking immigration benefits?
Paul entered the United States using a visitor visa. He sought an extension of his stay by filing an Application to Extend Status (I-539) because he was invited to speak in a conference on a date which was beyond his authorized stay. Paul continued to reside on a visitor visa in the U.S. even after his authorized period of stay hoping that his application will be approved and he will not lose status. Unfortunately, USCIS denied his application. Under the new policies, Paul will be put in removal proceedings because he is now in unlawful status.
Those seeking extensions of H1B visas and whose requests were denied may also suffer the same fate as Paul. Under the new policy, USCIS may issue NTAs and put those with denied petitions in removal proceedings.
There are thousands of applications and petitions filed with the USCIS by those who are present in the United States. They may be seeking to avail of some immigration benefits like an extension of non-immigrant stay, change of status, extension of working visas or adjustment of status from non-immigrant status to that of a lawful permanent resident. Most of the time these applicants, if they meet the eligibility requirements are approved and issued the requested valid status. However, with the recent policies, in the event the application or petition is denied, USCIS may issue a Notice to Appear and put the applicant in removal proceedings.
Other than cases of those unlawfully present whose application or petition are denied, the following categories of cases are also impacted by the new policies:
- Cases where fraud or misrepresentation is substantiated and/or where an applicant abused any program related to the receipt of public benefit
- Criminal cases where an applicant is convicted or charged with a criminal offense which is a ground of removability
- Cases in which N400 or an Application for Naturalization is denied based on good moral ground or a criminal offense
These USCIS new policies will result in more cases being filed in removal courts. With more than 700,000 cases pending in immigration courts nationwide, additional filings of cases based on these USCIS policies will only make the backlog severe. The ICE is not the only agency involved in enforcement of immigration law. The USCIS, which used to be the agency that handles immigration benefits, has now been turned into an enforcement agency as well. With this additional role, the delay in adjudication of petitions is expected to happen impacting thousands of adjustment of status and naturalization applications.
With the ever-changing policies evolving at a very fast pace, it would be prudent for a prospective petitioner or applicant to have a serious discussion about his case with a trusted legal counsel. One must be able to assess the varying legal options that may be available to attain the same result without risking removal. Or perhaps one must have his case examined on whether it is even timely or worth pursuing an application or a petition with the USCIS. During these critical times and when it comes to immigration, there is no substitute for due diligence.
(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw.)
