Starting October 1, 2018, U.S. Citizenship & Immigration Services (USCIS) may begin removal (also referred to as “deportation”) proceedings after denying an application for a benefit, such as an application for adjustment of status to lawful permanent resident (Form I-485), naturalization (Form N-400), or change or extension of status (Form I-539).  This new policy stems from President Trump’s Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.”  

If USCIS decides to initiate removal proceedings against a foreign national, it will issue a Notice to Appear (NTA), mail the NTA to the foreign national and file the NTA with Immigration Court.  Under the new policy, USCIS may issue an NTA after it denies an application where there is 1) fraud or misrepresentation; 2) abuse of public benefits; 3) criminal charges or convictions; or 4) unlawful presence following the denial of the application.  Withdrawing the application will not cancel the NTA or the initiation of removal proceedings.

USCIS will not issue the NTA immediately after denying an application.  The foreign national will be given time to depart after receipt of the denial notice.  USCIS also will wait for the relevant appeal period to expire before generating the NTA.  Finally, USCIS will consider positive and negative factors in the record to see if an exercise of prosecutorial discretion may be appropriate and recommended.

Employment-based petitions (Form I-129) and humanitarian applications (such as relief under the Deferred Action for Childhood Arrivals’ program) are exempt from the new policy. Provisional waiver applications (Form I-601A) also are not subject to the new policy.

This update is for informational purposes only. Please contact us if you would like to discuss this development further.