New USCIS Guidance Requires Initiation of Removal Proceedings upon Denial of an Immigration Benefit

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On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance that will generally require that USCIS issue a Notice to Appear (NTA), and thereby initiate removal proceedings, upon its denial of an immigration benefit request where the denial renders the applicant “not legally present” in the United States. This reflects a dramatic change in prior practice that may have far-reaching implications for many.  

What Is an NTA?

The issuance of an NTA is the government’s method for instituting removal (or colloquially “deportation”) proceedings against a foreign national. An NTA requires that the foreign national appear before an immigration judge and answer the charge that he or she is removable from the United States.

What Has Changed?

Historically, USCIS has focused its efforts on adjudicating applications for immigration benefits, whereas another branch of the Department of Homeland Security known as Immigration and Customs Enforcement (ICE) generally has been responsible for NTA issuance and removal efforts. In the past, when USCIS denied an immigration benefit application, the applicant was notified of the denial and advised of the requirement to depart the United States, unless he or she had another basis for remaining here. The new guidance mandates that, except in very limited circumstances, USCIS issue an NTA (and thus, commence formal removal proceedings) upon denial of an immigration benefit to anyone who is “not lawfully present” in the United States at the time of denial.

While it remains to be seen how USCIS will actually implement this new guidance, the following examples illustrate the cause for concern:

  • Unexpected Denial of H-1B Extension: An H-1B worker (Simon) has been in the United States for three years and his current H-1B status expires on September 30, 2018. On August 1, 2018, Simon’s employer timely and properly files a petition seeking to extend Simon’s H-1B status. Nothing about the company or about Simon’s job title, job duties, salary, etc. has materially changed since the original H-1B petition was approved, and both Simon and his employer reasonably expect that the H-1B extension petition will be approved as a matter of routine. However, likely due to changes in the way that the applicable law and regulations are now being interpreted, USCIS unexpectedly denies the H-1B extension petition on November 1, 2018. Since Simon’s H-1B status expired on September 30, 2018, the new guidance would appear to require USCIS to issue an NTA to Simon, which would cause the initiation of removal proceedings against Simon. Before the current guidance, Simon would have simply been advised to depart the United States voluntarily or pursue any other options available for him to remain here.
  • Denial of F-1 Student’s Application for Change of Status to H-1B: An F-1 student (Roger) who has been in the United States for eight years for his undergraduate and graduate education timely applies for a change of status to H-1B. Roger has Optional Practical Training (OPT) employment authorization valid through July 31, 2018 and a cap-gap extension through September 30, 2018. Although Roger’s H-1B petition requested a start date of October 1, 2018, USCIS did not make a decision on the petition until December 15, 2018, when it was denied. Since Roger’s OPT employment authorization expired on September 30, 2018, the new guidance would appear to require the USCIS to issue an NTA to Roger, which would cause the initiation of removal proceedings against him. Before the current guidance, Roger would have simply been advised to depart the United States voluntarily or pursue any other options available for him to remain here. Interestingly, Roger would not actually be out of status until 60 days after the H-1B petition is denied due to the grace period for F-1 students, and it is yet to be determined whether the NTA would be issued to him immediately upon the denial or only after the 60-day period.  

The examples above illustrate the uncertainty the new guidance has created. At the very least, the mandatory issuance of NTAs is expected to cause a very large increase in the workload of the immigration court system, which is already substantially overburdened. The new guidance may also discourage applicants from applying for immigration benefits for fear of the initiation of removal proceedings in the event of denial. Only time will tell the true impact of this new guidance, but in the meantime, it is just one more cause for uncertainty and worry for foreign nationals in the United States and their employers.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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