On October 1, 2018, USCIS implemented a new policy guidance that was first issued on June 28, 2018, that will lead to an increase in the number of Notices to Appear (NTAs) for immigration court proceedings issued to applicants before USCIS. Per a September 27, 2018, teleconference, USCIS has indicated that it intends to implement the new policy in stages.

Prior to the policy, USCIS rarely issued NTAs to applicants or petitioners unless the law expressly required it to do so. As a result, individuals could generally reapply for benefits, even if previously denied, without worrying too much about being placed in removal proceedings.  Now, that is not the case.

For now, USCIS is not targeting employment-based or humanitarian applications or petitions, though that is likely coming at a later time. Instead, it has turned its focus to family-based petitions.  If such a petition, which would include Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status, were to be denied and the petitioner or applicant is otherwise removable, USCIS will issue an NTA. USCIS will also now issue NTAs where it suspects fraud or misrepresentation, where an applicant has been convicted of or charged with a criminal offense (or has committed acts that are chargeable as a criminal offense), in naturalization cases where applicants are deportable, ineligible to naturalize, or denied on good moral character grounds, and in cases where an applicant would be unlawfully present in the United States when the petition or application is denied.

This new policy appears to be particularly problematic for those falling out of legal status upon the denial of the application or petition, as many individuals do not extend and maintain the status they were in when they filed for the adjustment of status or change of status petition. USCIS has indicated that it will not issue NTAs, though, until the appeal time has run on any adverse decisions, which should allow individuals up to 33 days to decide whether to appeal the decision or leave the United States. Filing an appeal, however, does not necessarily mean that USCIS will not issue an NTA.

For now, individuals need to simply be aware of the possibility that a denied petition could result in the initiation of removal proceedings against them. And, wherever possible, applications and petitioners should maintain lawful status as a “back-up option” in the event a pending application is denied.

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