In our July 12, 2018 blog, we discussed a new U.S. Citizenship and Immigration Services (USCIS) policy requiring the issuance of a Notice to Appear (NTA), which initiates removal proceedings against a foreign national, upon the denial of an immigration benefit request where the denial renders the applicant “not legally present” in the United States. As we noted at the time, the new policy marked a potentially significant departure from previous practice and the ramifications were unknown, but concerning. USCIS had temporarily suspended implementation of the policy.
On September 26, 2018, USCIS announced that it would begin implementing the new policy incrementally on October 1, 2018. USCIS stated, however, that at this time the policy will not apply to employment-based petitions and humanitarian petitions and applications. For the applications subject to the policy, USCIS clarified that it will send denial letters providing foreign nationals with adequate notice and time to depart the United States before issuing an NTA. USCIS says it will also provide information regarding how affected individuals can check whether they are in an authorized period of stay or validate their departure.
How USCIS will implement the policy in practice, and the policy’s impact on foreign nationals in the United States, remains uncertain.
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