INTRODUCTION
Recently, the U.S. government implemented a USCIS Policy Memorandum (PM-602-0050.1) that has increased the number of scenarios in which Notices to Appear will be issued.
Generally speaking, a Notice to Appear (“NTA”) is typically the first step in the removal or deportation process. More specifically, an NTA is a document that requires the recipient to appear before a judge in Immigration Court and effectively notifies the recipient that removal proceedings have begun against him or her.
WHAT DOES THE POLICY MEMORANDUM SPECIFY?
In pertinent part, the policy memorandum reads that “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” The USCIS began implementing this policy on October 1, 2018.
The practical application of this memo is that if the USCIS denies, for example, an I-485 Adjustment of Status (“AOS”) petition and the individual has no other underlying status, then an NTA will be issued to that individual.
DOES THIS EFFECT EMPLOYMENT-BASED CASES?
The short answer is, not yet.
In the memo, the USCIS notes that the issuance of NTAs after an unfavorable decision on an application, petition or benefit request “will not be implemented with respect to employment-based petitions…at this time.”
Accordingly, while this policy will not currently affect employment-based cases, there appears to be an indication that it could be extended to such cases at some point.
WHAT ABOUT NATIONAL INTEREST WAIVERS?
Because National Interest Waivers (“NIWs”) are employment-based, NIW petitions too – at least for the time being – are not affected by this policy memorandum. However, as discussed above, it seems that this could be a distinct possibility sometime in the not so distant future.
Should this memo eventually be implemented to apply to employment-based cases, it could then have a direct and material effect upon those applying for an NIW petition. As an example, should a foreign national who has no other underlying status apply for an NIW and AOS and have either of those petitions denied, he or she would be issued an NTA, which could effectively spell the end to his or her time in the United States.
As a result, it is highly recommended that potential NIW and/or AOS petitioners – regardless of whether they are filing now or in the future – hire a competent experienced legal team to greatly increase their chance of success, and thereby decrease the risk of denial and deportation. Attempting to apply for any of these petitions by oneself or without the guidance of a firm with a proven track record leaves a great deal to chance.
Thomas J. Arkell and his immigration team at Dunn Law Firm have helped thousands of international students, scholars, physicians, researchers and professionals become permanent residents of the United States. Mr. Arkell’s team has had a tremendous amount of success with both NIW and AOS petitions and would be happy to help you expedite your path to permanent residence in the U.S.
If you would like to contact Dunn Law Firm to discuss your credentials or to discuss a FREE consultation with Mr. Arkell, click HERE.
