New USCIS ‘Deportation’ Policy May Impact Legal Foreign Workers

On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance dated June 28, 2018 regarding when officers should issue a “Notice to Appear” (NTA).  An NTA is essentially a notification to a foreign national in the United States (U.S.) that the government has determined that he or she is “removable” from the U.S. (deportable). The issuance of the NTA causes the foreign national’s name and file to be referred to the immigration courts for a removal hearing before an immigration judge. Under the new guidance, USCIS officers are instructed to issue NTAs for a wider range of cases where there is evidence of fraud, criminal activity, or when an applicant is denied an immigration benefit and is unlawfully present in the U.S. On July 30, USCIS back-tracked for an indefinite time the effective date of this new guidance pending further review as to its implementation.  Even with this reprieve, employers should be reconsidering the more serious risks of the issuance of NTAs with greater frequency in particular for status violations.  This policy guidance, when implemented, will have a greater potential immediate impact in light of the new unlawful presence guidance for F, J, and M nonimmigrant visa holders, which goes into effect on August 9, 2018. Past Practice Historically, the issuance of NTAs by USCIS has been fairly uncommon in the business immigration world.  When a...

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