我们公司律师解读NTA# EB23 - 劳工卡
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WHAT HAPPENED?
On June 28, 2018 United States Citizenship and Immigration Services (USCIS)
issued a Policy Memorandum on updated guidance on Notices to Appear (NTAs)
in immigration court which could significantly impact employment-based
immigration processing. USCIS will start issuing NTAs, upon denial of an
application if the person is deemed removable at the time of the denial.
WHAT IS A NOTICE TO APPEAR?
A Notice to Appear is a charging document issued for the purpose of placing
an individual into deportation proceedings.
WHAT ARE THE IMPLICATIONS OF THIS POLICY?
This policy adds another level of complexity to immigration processing. In
situations where an employee is running out of time on their I-94 period of
authorized stay, a decision will need to be made whether it is best for that
individual to leave the country prior to I-94 expiration. For example, if
an employee remains in the U.S. beyond their I-94 expiration and receives a
denial, under this new policy, the USCIS may simultaneously issue a Notice
to Appear in immigration court.
MUST I APPEAR IF I GET A NOTICE TO APPEAR?
Yes. If an individual is issued a Notice to Appear then that individual is
required to appear at the date and time indicate on the notice. Failure to
appear could lead to an in absentia order of removal (deportation). This
carries with it bars to re-entering the U.S. in the future.
WHAT IS PLG DOING IN RESPONSE?
While all cases are unique, our overall strategy is to work closely with you
to take all possible precautions to ensure that your work visa petitions
are filed and adjudicated to completion before the foreign national’s
existing status expires. In that case, if the petition is denied, the
foreign national will still be in valid status and can avoid a Notice to
Appear. To that end, we are:
• Filing applications as soon as legally allowable to try and avoid
any expiring I-94
• Filing petitions with a request for “premium processing,” when
available, which requires USCIS to take action on the petition within 15
days of filing
• Forcing the USCIS to promptly adjudicate cases by suggesting
mandamus filings in District Court for cases pending beyond normal
processing times
• Recommending that District Court challenges be filed on any
denied cases as a filing in Federal Court. This could grant interim benefits
to an employee while a neutral judge determines if the USCIS denial was
proper or not.
• Evaluating a challenge to this new policy in Federal Court
Much is still developing and unknown at this time as this memo was just
released. Specifically, guidance on how the enforcement priorities will
affect USCIS’ use of discretion in adjudicating cases will be addressed by
USCIS separately. As we find out more, we will provide further guidance. As
always, we will continue to monitor any cases that are at risk and work with
you on a case by case basis to determine the best course of action. Please
reach out to us immediately if anyone in your organization receives an NTA.
For more information please do not hesitate to reach out to us.
============================================================================
===
WHAT HAPPENED?
On June 28, 2018 United States Citizenship and Immigration Services (USCIS)
issued a Policy Memorandum on updated guidance on Notices to Appear (NTAs)
in immigration court which could significantly impact employment-based
immigration processing. USCIS will start issuing NTAs, upon denial of an
application if the person is deemed removable at the time of the denial.
WHAT IS A NOTICE TO APPEAR?
A Notice to Appear is a charging document issued for the purpose of placing
an individual into deportation proceedings.
WHAT ARE THE IMPLICATIONS OF THIS POLICY?
This policy adds another level of complexity to immigration processing. In
situations where an employee is running out of time on their I-94 period of
authorized stay, a decision will need to be made whether it is best for that
individual to leave the country prior to I-94 expiration. For example, if
an employee remains in the U.S. beyond their I-94 expiration and receives a
denial, under this new policy, the USCIS may simultaneously issue a Notice
to Appear in immigration court.
MUST I APPEAR IF I GET A NOTICE TO APPEAR?
Yes. If an individual is issued a Notice to Appear then that individual is
required to appear at the date and time indicate on the notice. Failure to
appear could lead to an in absentia order of removal (deportation). This
carries with it bars to re-entering the U.S. in the future.
WHAT IS PLG DOING IN RESPONSE?
While all cases are unique, our overall strategy is to work closely with you
to take all possible precautions to ensure that your work visa petitions
are filed and adjudicated to completion before the foreign national’s
existing status expires. In that case, if the petition is denied, the
foreign national will still be in valid status and can avoid a Notice to
Appear. To that end, we are:
• Filing applications as soon as legally allowable to try and avoid
any expiring I-94
• Filing petitions with a request for “premium processing,” when
available, which requires USCIS to take action on the petition within 15
days of filing
• Forcing the USCIS to promptly adjudicate cases by suggesting
mandamus filings in District Court for cases pending beyond normal
processing times
• Recommending that District Court challenges be filed on any
denied cases as a filing in Federal Court. This could grant interim benefits
to an employee while a neutral judge determines if the USCIS denial was
proper or not.
• Evaluating a challenge to this new policy in Federal Court
Much is still developing and unknown at this time as this memo was just
released. Specifically, guidance on how the enforcement priorities will
affect USCIS’ use of discretion in adjudicating cases will be addressed by
USCIS separately. As we find out more, we will provide further guidance. As
always, we will continue to monitor any cases that are at risk and work with
you on a case by case basis to determine the best course of action. Please
reach out to us immediately if anyone in your organization receives an NTA.
For more information please do not hesitate to reach out to us.
