NTA Rule Changes Create Uncertainty in Deportation Cases

 Posted on September 25,2018 in Immigration

A Notice To Appear (NTA) is a formal notice to someone that they are being placed in deportation proceedings. While receiving one normally can be quite intimidating, a recent, quietly enacted change in guidance regarding how NTAs are used can make them even more alarming, even to immigrants with documentation who entered the United States legally.

NTAs Sent Immediately

Under previous administrations, if a person was lawfully present in the United States on a valid visa, such as a student visa (F1) or foreign worker’s visa (H1B), and they wound up going out of status while in the process of renewing their visa or making plans to depart, U.S. Citizenship & Immigration Services (USCIS) would generally not bother to issue an NTA, even though technically these people were unlawfully present in the U.S. Unless evidence of fraudulent or otherwise criminal activity existed, most of those seeking to reapply were simply treated as though the grant of a new visa would occur.

Now, under the new rule, a reapplication is treated very seriously, and if the benefit or extension is denied, the person will immediately be issued an NTA if they are determined to fall out of status for as little as one day. This is especially noteworthy, because current immigration law permits certain visa holders, such as H1Bs, to continue their employment and, generally, live a normal life for up to 240 days (approximately eight months) while their renewal application is pending. In many cases, the processing time for such extensions can be as much as one year or more, depending on demand and USCIS backlog. Thus, many are left with no choice but to uproot their lives with little notice.

Unlawful Presence Accrues

The truly scary aspect of the new “guidance” is that regardless of the option chosen by the immigrant in question, some form of negative immigration consequences are likely to be attached to a person’s record, even if they attempt to comply to the best of their ability. An NTA obliges a person to appear before an immigration judge to answer for what allegedly makes them deportable. If that person chooses not to do so--if they choose to simply leave the country, which is not advisable--they will receive a five-year ban from being admitted to the United States.

However, if an immigrant chooses to remain in the U.S. and contest their removability (as opposed to admitting that they are removable, which also carries a ban in most cases), the person begins to accrue what is called unlawful presence--that is, being present in the United States without any type of lawful immigration status. Enough unlawful presence means that upon departure from the U.S., the person is ruled inadmissible for a specific time--up to 10 years, depending on how long they remain. Regardless of which option is chosen, the immigrant will suffer negative immigration consequences, making this a manifestly unjust and slanted rule.

Enlist an Experienced DuPage County Immigration Attorney

The only advice being propagated for the moment is to ensure that if you are a lawfully present immigrant, you should file any renewals or requests for extension as far in advance of the cutoff date as possible, and you should have a plan for how to proceed if you do not hear back within a certain time frame. It is also a good idea to contact an immigration attorney. The passionate Chicago-area deportation defense attorneys at Mevorah & Giglio Law Offices will work hard for you. Call our offices today at 630-932-9100 to set up a free consultation.