As of October 1, USCIS could initiate removal proceedings against some foreign nationals without underlying immigration status, if their applications are denied and they do not depart the United States. USCIS first announced the Notice to Appear “NTA” policy in July of this year, but decided to delay its implementation.
USCIS will initially apply the policy to Form I-485 permanent residence applicants and to Form I-539 applicants to extend or change nonimmigrant status. It is very important to note that Employment Based Petitions (including H-1B, L-1, O and E petitions) are not currently subject to the policy. The NTA policy also exempts humanitarian applications.
What are the practical implications?
A foreign national whose I-485 or I-539 application is denied and who has no underlying valid status, could receive a denial notice. If the person is not in a period of authorized stay and does not depart the U.S., they may be issued a Notice to Appear before an immigration judge, who would determine whether they should be removed or are entitled to relief that would allow them to remain in the U.S.
Guzhva Law Firm is following these developments closely and we expect USCIS to issue additional guidance.
If you should have any questions regarding these changes, please contact immigration attorney Olga Guzhva.