Out of the blue and into the black

A few weeks ago, and buried beneath the avalanche of head-spinning news across the country, the USCIS quietly issued an in-house memorandum that has the potential to upend the lives of many individuals in America who have a pending immigration benefit application before the agency.

In a nutshell, the nine-page memo confirms the authority of USCIS officers to issue a Notice to Appear (Form I-862) in denial cases involving immigration benefit applicants who are deemed unlawfully present in the country or otherwise subject to any of the grounds for deportability.

A Notice to Appear (NTA), as the name implies, is an official document that notifies an individual that he/she is being placed in a deportation proceeding.

While the USCIS has historically possessed the legal mandate to issue NTAs, such authority has always been exercised sparingly and with extreme caution.

In the past, very rarely did a USCIS officer issue an NTA as adjunctive to a case denial.

With the new directive, however, every denied application in which the applicant has no more immigration leg to stand on, so to speak, can become a removal case.

To paraphrase an old Neil Young song, it’s like jumping out of the blue and into the black.

To illustrate, a Filipino tourist visa holder who is visiting relatives in the US applies for an extension of his visitor status. If the USCIS denies his extension application and the denial occurs after the expiration date of his initial visitor status, the denial notice may include an NTA, which means that, to all intents and purposes, the person is being placed in a removal proceeding.

Unfortunately, even if the person voluntarily departs from the US, the NTA may remain “flagged” on his record, which may complicate the person’s future travels back to the US, assuming that his original visa will not be cancelled.

Another example is when an individual on an expiring student visa status applies for change of status to that of a temporary worker. If the change of status application is denied, the applicant may suddenly find himself in front of an immigration judge.

Even green card applicants are not immune to this sudden shift in policy.

For instance, a Filipino woman on a diplomatic household worker visa marries a US citizen who petitions her for a green card. While her green card application is pending, she quits her original job and starts working for another employer based on a temporary work permit issued through her spouse’s petition. However, before her green card application is approved, and after her original employer canceled her diplomatic visa, her American spouse suddenly files for divorce and withdraws the underlying petition. As a result, the USCIS denies her green card application.

In the above scenario, the Filipina applicant will be issued an NTA as part of the denial process.

In another era, the applicant would just get a denial notice and nothing else. Now, every denial decision will most likely lead to deportation.

Ominously, as the 1970s folk/rock icon Neil Young laments in one of his songs, “Once you’re gone, you can never come back, when you’re out of the blue, and into the black.”

Yes, there Comes a Time when I Believe in You, Mr. Young.