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USCIS ADOPTS NEW POLICY FOR NTAs

July 6, 2018

USCIS ADOPTS NEW POLICY FOR NTAs

Author: New York Immigration Lawyer Alena Shautsova

USCIS changes policy on how and when it will be referring applicants to court. Now, all persons who applied for Immigration benefits and were denied will be issued Notices to Appear. A Notice to Appear is a charging document that means that the person is going to be placed in removal proceedings in Immigration Court. 

Under the new policy, the following cases will be referred to court: 

  • Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
  • DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

EXTENSIONS OF NON-IMMIGRANT PETITIONS WILL BE REVIEWED AS NEW SUBMISSIONS

October 25, 2017

EXTENSIONS OF NON-IMMIGRANT PETITIONS WILL BE REVIEWED AS NEW SUBMISSIONS

Author: Work Visa Immigration Attorney Alena Shautsova

USCIS has recently announced that it will no longer rely on previous approvals when deciding petitions for extensions of certain non-immigrant work visas.

This new policy will affect L1 petitions the most.

The changes

If previously, when the same company would file for an extension of the L1 petition for the same employee, USCIS would generally rely on the first approved petition to determine the validity and sufficiency of the extension request, now, USCIS will consider each request for an extension as a new petition.

Specifically, the new policy states:

“In adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The burden of proof in establishing eligibility is, at all times, on the petitioner. The fundamental issue with the April 23, 2004 memorandum is that it appeared to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same. Not only did this improperly shift the burden of proof to the agency contrary to INA § 291, but it was also impractical and costly to properly implement, especially when adjudicating premium processing requests.”

It means that a requestor for an extension will have to resubmit all documents that were necessary to qualify the beneficiary initially, plus more documents establishing qualifications for an extension. Such documents may be, but are not limited to: records of payroll, copies of tax returns, bank account statements, contracts, etc. (The large companies have different requirements).