U.S. Citizenship and Immigration Services (USCIS) announced today that it will temporarily delay implementation of a recent policy change that would initiate removal proceedings against foreign nationals who fall out of status when their immigration petitions are denied.

Key points: 

  • The policy memorandum, issued June 28, directs USCIS to issue a Notice to Appear (NTA) when an individual is no longer in lawful immigration status following the denial of an immigration petition or application. The NTA is the document that formally initiates removal (deportation) proceedings. The policy effectively means that foreign nationals in nonimmigrant status who are denied an extension or change of status will be placed in deportation proceedings if they have no other underlying immigration status.
  • Today’s announcement means that the policy will be delayed until operational guidance is issued, which the agency said is pending. The policy memo directed USCIS components to issue guidance within 30 days of the June 28 publication (July 28), but the agency did not meet that deadline.

BAL Analysis: This announcement confirms that USCIS is not currently implementing the new NTA policy and will not begin implementation until operational guidance is issued. The delayed implementation gives businesses and foreign employees some additional time to prepare. The agency will be releasing operational guidance, which should make the impact of the policy memo clearer. Sources within the agency have indicated that officers are likely to be directed to grant a 30- or 45-day grace period before issuing NTAs to allow time for foreign nationals to appeal or leave the U.S. before the notice is issued. BAL is closely following this and other policy changes and will update clients as soon as information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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