Filing a Petition with USCIS and the Risk of Removal or Deportation Proceedings

When we discuss filing a petition for an immigration status with a potential client, one of the most frequent questions we hear is “What is the risk of filing this petition with USCIS?” For undocumented members of our community, it can be overwhelming to think of revealing all of your personal information to the government, as approval of an application for an immigration status is never guaranteed.

In limited circumstances, USCIS can issue a Notice to Appear (NTA) to an applicant for an immigration status. This is in respect to a person who does not have an immigration status, overstayed their visa, or is removable or deportable from the United States. A NTA is the document issued to start removal or deportation proceedings in the Immigration Court. It contains allegations of facts that sustain an alleged charge of removability or deportability. Typically, immigration law enforcement agencies issue NTAs, but USCIS also has the power to initial removal or deportation proceedings.

The Trump Administration expanded the USCIS NTA Policy by directing USCIS to issue a NTA when a petition for an immigration status was denied. Fortunately, the Biden Administration rescinded this USCIS NTA Policy on January 20, 2021. Now, USCIS will issue NTAs under their pre-existing USCIS NTA Policy, which was enacted on November 7, 2011. Under this Policy Memorandum, USCIS will issue a NTA to initiate removal proceedings in the following circumstances.

When issuing a NTA is required by statute or regulation: In the following circumstances, our laws require USCIS to issue a NTA: termination of conditional permanent resident status and denials of I-751 Petition to Remove the Conditions of Residence; Denials of Form I-829, Petition by Entrepreneur to Remove Conditions; termination of refugee status; denials of NACARA 202 adjustment applications; asylum referrals, termination or asylum or withholding of removal, positive credible fear findings; and denials of NACARA 203 where the applicant does not have asylum or lawful immigrant or nonimmigrant status.

Fraud Cases with a Statement of Findings Substantiating Fraud: If the record contains a Statement of Findings substantiating fraud, USCIS will issue a NTA even if the application is denied on a ground other than fraud.

Referrals to ICE for a Decision on NTA Issuance: In some circumstances, USCIS will not directly issue a NTA, but instead refer to ICE for a decision on issuing a NTA. For instance, an egregious public safety case will be referred to ICE. An egregious public safety case occurs when the applicant is under investigation, arrested, or convicted for: murder, rape, or sexual abuse of a minor; illicit trafficking in firearms or destructive devices; offenses relating to explosive materials of firearms; crimes of violence (where the penalty or sentence is at least one year of incarceration); demand for or receipt of ransom; child pornography; peonage, slavery, involuntary servitude, and trafficking in persons; alien smuggling; human rights violators, known or suspected street gang members, or Interpol hits; re-entry after order or exclusion, deportation or removal subsequent to felony conviction, without an approved Form I-212.

Some criminal convictions or charges not listed above may still render someone inadmissible or removable from the United States. In this circumstance, USCIS will adjudicate the petition and then refer the case to ICE. Examples of this include people applying for naturalization who have a criminal record that renders them deportable. Applicants for naturalization who were inadmissible at the time of adjustment or admission to the United States will also be referred to ICE for a decision on issuing a NTA.

If you are considering filing a petition for an immigration status with USCIS, it is vital to speak with an immigration attorney if any of the above circumstances apply to your case. The attorneys of Flecha Law can assist with determining the risk of the government initiating removal or deportation proceedings upon filing a petition with USCIS.