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More On NTA Issuance - Denial Of Immigration Application Or Petition On Or After October 1st May Well Force Your Removable Clients Before The Immigration Court

by Ann Pinchak, Esq.

In an article by Alan Lee, Esq. entitled, "Will The Denial Of Your Immigration Application Or Petition On Or After October 1st Force You Before The Immigration Court?", Lee quotes the July 11, 2006 interoffice memo of Michael Aytes which states that once an application or petition is denied a notice to appear (NTA) should normally be issued to foreign nationals who are removable. Lee asks in his article whether the denial will result in more cases before the immigration court.

While the Aytes memo has been out since July, USCIS Headquarters only issued a memo of operating procedures this week. Effective October 1, 2006, if a case is denied, the only way USCIS gets credit for the denial is if an NTA is issued.

Because USCIS is statistics-driven and gets its funding based on numbers, Service Centers and local offices will now be issuing NTAs with denials for removable foreign nationals. When balancing the exercise of prosecutorial discretion with issuance of an NTA and funding, my guess is funding and NTA issuance wins.

This means:

  • More work for lawyers who represent foreign nationals in court.
  • Attorneys must be more careful in preparing applications and petitions. Firms that use legal assistants to prepare documents will need to slow down and check work carefully to make sure that thorough; complete cases are sent to USCIS. The attitude of "file it and wait for a Request for Evidence (RFE)" should end when, if there is no RFE and the case is denied, an NTA will be issued.
  • Attorneys may want to think twice about certain filings. In the past, a firm might file an H-1B petition for change of employers as an extension of status for someone who had been out of work for some time. If the extension was denied, the attorney would tell the foreign national to consular process. Now, if an NTA will be issued when an extension is denied, attorneys may decide to file the petition without the request for extension and instead request consular notification.
Hopefully, with its new NTA policy, the Service will instruct its officers to follow the February 16, 2005 Memorandum from William Yates on RFEs and Notices of Intent to Deny (NOIDs).This Memo clarifies that an application or petition may be denied without an RFE or NOID only if there is clear ineligibility (such as a petitioner filing an I-130 who is not a qualifying relative or a petitioning company filing an L-1 petition where the petition clearly shows there is no relationship to the foreign company).

About The Author

Ann Pinchak, Esq. is a Senior Attorney with Quan, Burdette and Perez in Houston, Texas and has practiced immigration law for 21 years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.