USCIS Paying Increased Attention To Status Violations When Adjudicating Applications for Immigration Benefits

October 11, 2006- USCIS issued a memorandum providing internal guidance on exercising discretion to issue Notices to Appear to aliens applying for immigration benefits. Notices to Appear constitute initiation of Removal Proceedings. In addition, public statements by USCIS officials are paying increased attention to the inherent authority of USCIS to issue Notices To Appear when adjudicating applications for benefits, particularly in the context of filing a family-based immigrant (I-130) petition where the alien beneficiary is not in status. It is expected that USCIS will be increasing the number of NTAs it issues.

Effective October 1, 2006, if a visa applicant appears to be out of status when the USCIS denies an application, the USCIS is supposed to issue a notice to appear (NTA) to have the person appear in removal proceedings.

If this new policy is true, it may force noncitizens to keep their underlying statuses in effect while they pursue a green card. For example, many adjustment of status applicants currently do not maintain their underlying B1 or other work visa status while their adjustment of status application is pending, relying instead on advance parole and interim work authorization. Based on the new USCIS policy, doing that may expose them to removal proceedings if their adjustment application is denied.