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You could face deportation/removal if your case or extension is denied

25 Jul 2018 You could face deportation/removal if your case or extension is denied

Posted at 12:38h in Immigration Articles by Michael J. Gurfinkel, Esq.

In a previous article, I wrote about USCIS issuing a Policy Memorandum (PM) about the various categories of cases where a person could face deportation/removal if USCIS denied their petition, application, or other immigration benefit.  Here are some possible real-life situations where people could face deportation/removal:

  1. A person enters the U.S. as a visitor and is given six months on his I-94. Before the expiration of his status, he applies for an extension, but then moves.  USCIS sends a request for evidence (RFE) to his address of record, which the person never receives because he moved.  The application for extension is then denied due to “abandonment” because no response was received for the RFE.  USCIS could then issue a notice to appear (NTA) and place the person in removal/deportation proceedings.
  2. Similar case, where the person applies for an extension, but USCIS denies the extension after the I-94 expires, concluding the person hasn’t justified or documented the reason or purpose for extending his stay. As a result of the denial, the person could be placed in deportation proceedings.
  3. A person is petitioned by an elderly parent or an unemployed spouse, who submits an affidavit of support. USCIS determines the petitioner is not earning enough money and denies the case on the grounds that the beneficiary is likely to become a “public charge.”  As result of the denial, the beneficiary could face deportation/removal.
  4. A person enters the U.S. as a visitor, and then files for change of status to student. USCIS denies the change of status after the I-94 expires.  Because the person would now be out of status or “unlawfully present,” they could face removal/deportation.
  5. A person is in H-1B status, based on a previously approved petition, and applies for an extension. USCIS denies the extension, concluding that the position was not a “specialty occupation,” even though they had previously approved the original H-1B petition.  This denial results in the person being out of status.  They could now face removal/deportation.
  6. A person obtained a green card either through employment or marriage to a U.S. citizen. It turns out they never worked for the employer or never lived with the U.S. citizen spouse.  They now apply for naturalization, and USCIS discovers their fraud.  Not only will their naturalization application be denied, but USCIS could likely seek to revoke their green card and place them in deportation/removal.

Once a person is placed in removal proceedings, they have to appear in court, or they will be ordered deported in their absence (in absentia), which could affect their future ability to obtain immigration benefits.  Because of the USCIS’s new policy of considering almost everyone an “enforcement priority” and issuing NTA’s for almost every immigration violation, the courts will be packed and backlogged, and it might take years before the person will have his day in court.  Depending on the reasons for the denial, a person could possibly be taken into custody and detained while waiting for a court date.

Therefore, if person was merely filing for an extension of their visitor’s visa to go to Disneyland or spend more time with their family, but the extension was denied, they could be placed in removal proceedings, and they may now have to remain in the U.S. for months or years.  But if they remained in the U.S. for over 180 days, they also triggered the 3/10-year bar. And if they leave, they “self-deport.”

It remains to be seen how this new PM will be put into effect, but as you can see, even the most minor immigration violation or infraction could result in removal/deportation.  That is why if you have any immigration issues or 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 citizen is considered an enforcement priority.

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