On June 28, 2018, USCIS announced its new policy on the issuance of Notice to Appear (NTA) through the memorandum titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.”
An NTA is issued to a noncitizen whom the federal government believes to be removable from the US. The NTA sets forth the charge(s) against the alien and the statutory provisions alleged to have been violated. Thus, the NTA is a charging document that initiates removal proceedings against noncitizen respondents, requiring them to appear before an immigration judge who will determine whether they should be removed from the U.S., or whether they are eligible for relief allowing them to remain in the US or voluntarily depart without an order of removal.
The new policy guidance requires USCIS to issue NTAs in far more cases than ever before. Of particular concern, the guidance calls for the issuance of an NTA if an applicant or beneficiary is unlawfully present at the time an application or petition is denied. Unlawful presence is defined by reference to an individual who is present in the US after expiration of the period of stay authorized by the Attorney General or is present in the US without being admitted or paroled.
Once an NTA is issued, ignoring it and simply departing the US is not an option. A person who receives an NTA (whether issued to the individual or his or her attorney of record) and who fails to attend a proceeding shall be ordered removed in absentia if the government establishes by clear, unequivocal, and convincing evidence that the written notice was provided and that the alien is removable. A person who without reasonable cause fails to appear for removal proceedings is barred from readmission to the US for five years.
On the other hand, remaining in the U.S. to appear in immigrant court results in the accrual of unlawful presence. A person who has been unlawfully present for more than 180 days but less than one year and who departs the US is barred from returning for three years (known as the three- year bar). A person who departs after having been unlawfully present for more than one year is barred for ten years (known as the ten-year bar). The accrual of unlawful presence is not tolled by the initiation of removal proceedings. Therefore, an individual who might not be subject to the three or ten-year bar at the time an immigration benefit is denied, may become subject to the bar while he or she awaits an initial court date. Although Department of Homeland Security has the authority to grant pre-hearing voluntary departure for a period of up to 120 days, the new NTA guidance makes no mention of voluntary departure as an option in lieu of being subjected to removal proceedings. At this point, it is difficult to predict the number of individuals who will be placed in removal proceedings as a result of the new NTA policy, particularly due to the lack of lawful presence at the time an immigrant benefit is denied. In light of this policy guidance, we submit that the following preemptive actions are worth consideration:
1) Premium processing: use premium processing to get the result of the petition prior to the expiration of your current status;
2) Apply for visa abroad: instead of changing or extending status in the US, consider applying for visa abroad;
3) In H1B transfer cases, do not start working for the new employer prior to the approval of the petition, and use premium processing service for the petition;
4) Maintain non-immigrant status (such as H1B or O1) while I-485 is pending;
5) Be cautious in filing application to extend B2 status (e.g. for parents visiting the US). Such application can take a long time to process and the visitor’s status will most likely have expired by the time the extension application is adjudicated.
We have been studying the new NTA policy guidance and will continue to keep track of its development and actual implementation, and will report back if and when there is any update.
*YZ(原FYZ)律师事务所是向各大教育/研究机构,私营企业及个人提供全方位移民法律 服务的事务所。我们的律师拥有多年美国移民法律服务经验。我们专精美国职业移民申 请和非移民工作签证申请,诸如:EB-1A, EB-1B, EB-1C, NIW, PERM, EB-5, H-1B, L-1 and O-1. 我们在旧金山湾区和芝加哥设有办公室,是为数不多的跨美职业移民律 师事务所之一。网址: www.yzlawgroup.com; Email: info@yzlawgroup.com; Tel: 650 -312-8668(SF Bay area); 630-577-9060(Chicago)。
|