Denial of your petition or application could result in ‘instant’ deportation/removal

As of October 1, 2006, USCIS has a new policy that if your petition, application, or waiver is denied, they could also, at the same time, issue a Notice to Appear ("NTA"), placing you in deportation removal.

In the past, people have applied for a wide variety of immigration benefits, such as family or employment-based petitions, adjustment of status, removal of conditions (based on a marriage to a US citizen), fraud waivers, etc. Other people applied for benefits that they were not entitled to, such as political asylum (when they were never really persecuted in the Philippines) or CSS/LULAC amnesty (when they were not in the US continuously since January 1982). They thought, "I’ll give it a try, and if it’s denied, it’s not a big deal. I’ll wait for something else to come along."

It was often assumed that if a petition, application, or waiver was denied, USCIS would simply send out the denial and close the file, with no further steps or action being taken against the alien. In other words, while USCIS always had the authority to initiate removal proceedings against aliens, it had really not exercised that power on a regular, ongoing basis.

However, the new USCIS policy basically instructs USCIS officers that "once the denial of the application or petition is complete (including applications for waivers for which the applicant may be eligible), USCIS may issue an NTA where the applicant or permanent resident petitioner appears to be removable . . . If an applicant is removable and there are no means of relief available (e.g., voluntary departure, reinstatement, eligibility for another status), then an NTA should normally be prepared as part of the denial." In such cases, both the denial and the NTA could be sent to the alien at the same time, or the NTA could soon follow the denial in the mail.

For example, a person may have applied for a greencard through Labor Certification, but the case is ultimately denied because the employer did not establish the "ability to pay." If that labor certification was the only way by which the alien was pursuing a greencard, the denial would make the alien "TNT," and could now subject him to possible issuance of an NTA. The same might also be true in connection with denials of extensions of visitor visas or change of status from visitor to student, or if a person’s fraud waiver is denied. Under this new policy, not only will the denial be issued, but USCIS could also place the alien in deportation/removal.

That is why it is all the more important that you seek the advice and assistance of a reputable attorney, who can analyze and evaluate your case (rather than applying on your own, or trying to handle the case or interview yourself). While having an attorney does not "guarantee" your case will be approved, I think it greatly increases the chances that a valid, legitimate case will be approved, rather than it being denied because the alien, handling the case on his own, did not properly package or present the case. With the possibility of "instant deportation" if your case is denied, you should not take chances.

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