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Deportation of Legal and Undocumented Immigrants if Visa or Benefits Denied

Recently, the Trump administration expanded the guidelines for summoning immigrants before an immigration judge. On June 28, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a Notice to Appear (NTA) policy memorandum which provided guidance on when the USCIS may issue Form I-862, Notice to Appear. An NTA is the charging document in a removal proceeding.  It alleges facts that, if true, would support a ground of deportability or inadmissibility. It is often compared to a criminal complaint. It is the first step in starting removal proceedings. On October 1, 2018, and November 19, 2018, some of the new guidelines were implemented.


As of October 1, 2018, the USCIS may issue NTAs to those who have been denied status-impacting applications, including:

  • Form I-485, Application to Register Permanent Residence or Adjust Status
  • Form I-583, Application to Extend/Change Nonimmigrant Status


As of November 19, 2018, the USCIS may also issue NTAs based on the denials of the following forms:

  • I-914/I-914A, Applications for T Nonimmigrant Status
  • I-918/I-918 Petitions for U Nonimmigrant Status
  • I-360 Petition for Amerasian, Widow(er), or Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile petitions)
  • Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant
  • I-730 Refugee/Asylee Relative Petitions
  • I-485 Applications to Register Permanent Residence or Adjustment of Status


The new measures affect undocumented immigrants as well as those who entered the U.S. legally and applied for an immigrant benefit such as an immigrant visa. If an undocumented or legal immigrant’s application, petition, or benefit is denied, his or her presence in the U.S. becomes unlawful immediately. Prior to the new guidance, an immigrant had more time to re-petition or pursue other pathways to remain in the U.S. under a different status.


According to the USCIS, it will send a letter that provides adequate notice to those whose request for a benefit or status-impacting applications has been denied. If the applicant, beneficiary, or self-petitioner who is denied is no longer in a period where he or she is authorized to stay and does not leave the U.S., the USCIS may issue an NTA. The USCIS will continue to prioritize those with criminal records, fraud, or national security concerns when issuing NTAs.


At this time, the USCIS has not implemented the guidelines that affect employment-based petitions that were outlined in the NTA Policy Memo released on June 28. Currently, the existing guidance on these matters remains in effect.


If you are concerned about your or your loved one’s immigration status or are facing deportation, it is important to consult the guidance of an experienced immigration lawyer. The lawyers at Bretz & Coven, LLP are experienced in representing clients in visa, benefit, and petition matters as well as deportation proceedings. For more information or to schedule a consultation, call our New York and New Jersey immigration lawyers at (212) 267-2555.


Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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