IN previous articles, I wrote about a recent USCIS policy memorandum (PM), where USCIS would start issuing notices to appear (NTA) if USCIS denied certain immigration benefits (such as extension of status, change of status, adjustment of status, family petition, employment – based petition, etc.) and, as a result of the denial, the person is considered “out of status.”

Fortunately, on July 30, 2018, USCIS announced that it would postpone implementing (or enforcing) that PM at the present time until the “operational guidance” or instruction on how to carry out this new policy is issued. The PM had originally instructed to create or update their “operational guidance” within 30 days, and since it is still pending, the PM will not yet take effect.

While this is welcome news, it still means this policy will come into effect once USCIS comes up with the guidance. If that is the case, the PM will have very serious, if not devastating, effects on people applying for various immigration benefits, where they could be placed in removal or deportation proceedings if their benefit is denied, such as:

• Person on a visitor’s visa applies for an extension, but the extension is denied after their existing status expired.

• Person petitioned by elderly parent, who is earning insufficient income to satisfy the requirements of an affidavit of support, and their case is denied because they’re likely to become a “public charge.”

• Person is being petitioned, but forgets to include a critical document like a birth certificate or marriage contract, and USCIS decides to deny the case without serving a request for evidence (RFE).

• A couple is truly in love, but are nervous at the marital interview, give conflicting answers, and the case gets denied as a “fixed marriage.”

It remains to be seen how this new PM will be put into effect once the operational guidance is issued by USCIS. However, in this era of zero-tolerance, where even merely being out of status makes a person an “enforcement priority,” even the most minor immigration violation or infraction could result in removal/deportation.  Even though this new PM is not yet “officially” enforced, it’s possible that officers will already start taking a tough and strict stand when denying a case.

That is why if you have any immigration issues or are applying for immigration benefits, you should seek the advice of an attorney, who can advise you of your eligibility and chances of success, especially in this new climate of enhanced immigration enforcement, where almost everyone who is not a U.S. citizen is considered an enforcement priority.

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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.


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