New USCIS Policy Will Result in More Foreign Nationals Placed in Deportation Proceedings

On July 5th, USCIS published guidance regarding issuance of Notices to Appear (NTA).  The NTA is the charging document issued to foreign nationals who are deemed “removable” form the U.S.  People who receive NTAs must appear before an immigration judge to determine whether they should be removed (i.e., deported).

For years, NTA issuance has been the responsibility of CBP (border enforcement and inspections) and ICE (interior enforcement).  This new guidance requires USCIS to issue NTAs to individuals whose applications to extend or amend their stay or change status are unexpectedly denied by USCIS due to changing USCIS policies.

For example, an H-1B petition requesting an extension of stay is timely filed before the current H-1B status expires.  However, due to USCIS backlogs, the petition is not adjudicated until after the underlying petition has expired.  If USCIS unexpectedly denies the extension request, the H-1B worker will be issued an NTA and placed in removal proceedings.

Given H-1B backlogs at USCIS and the uncertainty of case adjudications under the current administration, it is more important than ever to file cases as soon as possible and use premium processing to achieve an expedited decision from USCIS.

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