What’s a “Notice to Appear” (NTA)? How about “unlawful presence”? Phrases such as these may be a new for many following business/employment based immigration matters. Because of new USCIS Policy memoranda, these removal terms are now added to our business immigration lexicon and concern.
NTA is the charging document issued by an authorized agent of the US Department of Homeland Security initiating in adversarial proceedings. Once an NTA is filed with the immigration court, jurisdiction vests in the Immigration Court and noncitizens enter into removal (fka deportation) proceedings to determine whether they may be removed from or stay in the US. The Immigration Court is part of the Department of Justice’s Executive Office of Immigration Review (EOIR)
Neither an employer, nor the nonimmigrant whose employer is seeking an immigration benefit such as an extension or change of their status wants an NTA!
On June 28, 2018, US Citizenship and Immigration Services (USCIS) issued a Policy Memorandum updating its policy on the issuance of NTAs consistent with the January 25, 2017 Executive Order, “Enhancing Public Safety in the Interior of the United States.”
Effective July 5th, :” USCIS , along with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), has legal authority under current immigration laws to issue NTAs. This policy Memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA. The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:
..Cases in which, upon denial of an application or petition, an applicant is unlawfully present in the United States”
USCIS is the part of DHS which adjudicates immigration petitions for benefits such as H-1B status, L-1 status, greencard applications, etc. Until recently, USCIS was the “service” providing agency. It did not issue NTAs only due to the denial of a petition and the start of unlawful presence for the beneficiary. But, what is “unlawful presence” and what does it mean?
“Unlawful presence” is a legal term defined under section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (INA). It refers to a person who is ”present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” The consequence of being unlawfully present is that after 180 days of unlawful presence, a person who departs the US generally is barred from reentry for 3 years. More is the pity for a person whose unlawful presence is for a year or longer—that person is barred for a decade. There are possible waivers, but the 3/10 year bars have proven to be quite an effective deterrent against being “unlawfully present”.
Of course, the next question is: How does that phrase apply in the context of lawful, business/employment based immigration?
As a general statement, nonimmigrants entering the US lawfully are inspected and admitted into the US and are given a specific amount of time by the CBP officer to remain in the US in that visa category. For example, an H-1B worker entering the US from a trip abroad would receive a stamp and an I-94 record would be created to indicate entry on a certain date in H-1B status until a fixed duration or end date. After the expiration date (plus 60 days for the H-1b visa holder in our example), if neither employer, nor employee files an application to extend the H-1B status or to change to another status, the unlawful presence clock would begin to run.
Until the most recent Policy Memorandum, USCIS would not begin removal proceedings against this person if, for some reason his/her visa request was denied and the denial was after the I-94 expiration date. But if, unexpectedly an H-1B extension is denied and USCIS institutes removal proceedings, the worker can no longer work, apply for permanent residence or any other visa. Moreover, the worker cannot even depart the country: failure to appear before the Immigration Judge results in an “in absentia” order of removal. And, the employer loses a valuable employee who may not be able to return to the US for a decade.
That’s not all: when “unlawful presence” became the law, it didn’t apply to most students. F-1, F-2, M-1, J-1 and J-2s generally enter the US with permission to remain until they have completed their education, not until a specific date, through the duration of their status. Entry on “Duration of Status” or “D/S” did not trigger unlawful status if, for some reason, the nonimmigrant stayed in the US beyond the period authorized by their program or otherwise violated their status—for example, not being able to find constant employment during a period of Optional Practical Training. As of August 9, 2018 –unless enjoined by a court—any time a nonimmigrant with “D/S” is out of status, he/she is unlawfully present—and is at risk of being placed in removal.
As of May 31, 2018, there was a backlog of more than 700,000 removal cases. The Immigration Court is overwhelmed with a docket that will take many years to clear. When a person is put into removal proceedings, when the NTA issues, as mentioned that person is not free to depart the US without a resolution of the removal matter. These new Policies could dramatically clog the Immigration Court system that is already overwhelmed. Just as importantly, these policies intimidate students and workers from coming to the US, deter employers from hiring skilled foreign workers and discouraging foreign employers from investing in the US.