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New NTA Policy Fully Implemented: Non-U.S. Citizens Whose USCIS Applications are Denied May Risk Deportation

On October 1, 2018, the U.S. Citizenship and Immigration Services (USCIS) announced the implementation of its New Notice to Appear (NTA) policy that will have an impact on immigrants with denied applications for benefits. On November 8, 2018, an expansion of the list of applications and petitions affected by this new policy was announced by USCIS and most of them are humanitarian in nature.

WHAT IS AN NTA ?
NTA stands for Notice to Appear which refers to the charging document that is issued to foreign nationals who are deemed “removable” or deportable from the United States. When an individual receives a notice to appear, it means that he is put in removal proceedings so he should appear before an Immigration Judge. During the hearing, he is expected to defend himself from deportation by raising appropriate relief/defenses/waivers that may be available to avoid his deportation or to allow him to remain in the United States.

WHAT IS THE SIGNIFICANCE OF THIS NEW NTA POLICY TO NON-U.S. CITIZENS APPLYING FOR IMMIGRATION BENEFITS?
USCIS began issuing notices to appear on October 1, 2018 to non U.S. citizens whose applications for immigration benefits are denied. More specifically this applies to those with denied applications for adjustment of status and applications to extend or change non-immigrant status. Before October 1, 2018, those with denied applications are not affected by this new NTA policy and may not necessarily be put in removal proceedings.

In its recent press release, starting Nov. 19, 2018, USCIS may issue NTAs based on denials of the following humanitarian type of applications/petitions:

  1. I-914/I-914A, Applications for T Nonimmigrant Status, and
  2. Petitions for Forms I-918/I-918A, Petitions for U Nonimmigrant Status;
  3. I-360 Petition for Amerasian, Widow(er);
  4. I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant,
  5. Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile petitions); and
  6. I-730 Refugee/Asylee Relative Petition, when the beneficiary is present in the US, as well as Form I-485, Application to Register Permanent Residence or Adjustment of Status, filed with these underlying form types.

Note that USCIS not ICE will issue the notice to appear when there is a denial practically compelling these individuals into a court system and making it difficult for them to depart the United States while their removal case is pending.

CAN YOU CITE EXAMPLES OF THOSE WHO MAY POTENTIALLY BE AFFECTED?
An individual in possession of a H1B visa, or a student visa holder filing for an extension of status, and the application for extension of status is denied by the USCIS is an example. Upon denial, USCIS may now put this individual in removal/deportation proceedings. Another example is a spouse of a U.S. citizen filing for adjustment of status; if denied for any reason, the spouse applicant for adjustment of status may be put in removal proceedings. Also, beginning November 19, 2018, those whose U, T or VAWA (Violence Against Women’s Act) self petitions are denied may be issued NTAs.

WHAT CAN INDIVIDUALS WHO INTEND TO FILE FOR APPLICATIONS FOR IMMIGRATION BENEFITS DO TO AVOID RECEIVING NTAs?
This new NTA policy has harsh effects on applicants. The best step to take is to make sure that whatever application is filed, all eligibility requirements are met and all possible issues which may be grounds for denials are addressed in the application. I also understand that many file applications on their own but these days, it will be best to exercise due diligence by consulting with trusted legal professionals before filing an immigration application. In the worse case scenario that an NTA is received, do not depart immediately. If you depart after receiving an NTA without justifiable reason, an order of deportation in absentia may be issued and it will have a serious consequential effect on one’s ability to return to the United States in the future.

(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.)

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