U.S. Citizenship and Immigration Services, or USCIS, published a new policy guidance on June 28, 2018, regarding the issuance of Form I-862, Notice to Appear. A Notice to Appear, or NTA, is a document issued to a foreign national by Immigration and Customs Enforcement, or ICE, when the agency has determined that the individual is removable. NTA orders the person to appear before an immigration judge on a given date and to undergo the removal proceedings in court. Until now, USCIS rarely issued NTAs, even after denying immigration benefits. Now, per this new policy guidance, USCIS will begin issuing NTAs on its own initiative without consulting ICE. As a result, we expect that many more foreign nationals will be placed in removal proceedings after their applications or petitions filed with USCIS are denied. The new policy provides the following instances in which USCIS can issue a NTA:
- Cases in which fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits.
- Criminal cases in which an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability.
- Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
- Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.
What is the impact of this new NTA policy on religious workers?
Previously, if petitions or applications filed with USCIS were denied and religious workers were no longer in valid R-1 status, they would simply leave the United States and either remain abroad or obtain a new visa to re-enter the United States. However, if USCIS issues a NTA after an application or petition was denied because a foreign national is unlawful present, he or she must remain in the United States and undergo removal proceedings in court, however long that maybe. The foreign national may continue to accrue unlawful presence while waiting for the court date and may not be eligible for work authorization during this period. If the foreign national is served with a NTA, but departs the United States, and fails to appear in court, he or she will be faced with a five-year bar on reentry to the United States. The best option at this stage will be negotiating voluntary departure with the DHS attorney, which means that the foreign national forgoes the right to fight the charges and leaves the U.S. voluntarily.
Practice Tips in light of this new NTA policy
Based on this new policy guidance, it is highly advisable that extension petitions are filed at the earliest possible date, six months in advance of the status expiration date. Eligible employers are highly encouraged to process the extension petitions via premium processing so that foreign nationals can obtain USCIS adjudication within 15 days of filing, instead waiting for several months. It is also important that religious organizations and foreign nationals comply with all aspects of immigration regulations and always consult with attorneys before making changes in employment or making travel arrangements in order to avoid being denied an immigration benefit. Lastly, foreign nationals must make sure that any negative issues in their own personal immigration history, as well as any criminal offense or conduct be fully disclosed to the attorney before filing for any immigration benefit with USCIS. Denial of an immigration benefit will now carry much more dire consequences than in the past based on this new policy.
As of July 30, 2018, the implementation of this policy has been postponed and no details have been provided as to when the policy ultimately goes into effect.