NTA Issuance After I-140 Approvals
March 18th, 2009 by Brian D. Zuccaro
AILA has received reports from several members that the TSC has begun issuing NTAs to out-of-status beneficiaries after the approval of an I-140 petition filed for the alien. This includes those who are eligible to adjust under INA §245(i), but who have not, or cannot, file to adjust status due to category backlogs. The cases reported involve petitions adjudicated in January of 2009. AILA is investigating to determine whether this reflects a new policy that diverges from prior policy direction on NTA issuance, discussed below, whether the decision to issue an NTA in each of the cases was due to factors consistent with previous NTA guidance, or, whether the NTAs were improvidently issued, and if so, whether USCIS and or DHS will consider recalling the improvidently-issued NTAs.
In April 2001, district offices were told specifically not to use the filing of an immigrant petition, application for labor certification, or application to adjust status as the sole ground to initiate removal proceedings against an out-of-status INA §245(i)-eligible applicant. INS recognized that prosecutorial discretion prohibiting such practice had to be exercised to “ensure that individuals eligible for the benefits of section 245(i) of the INA, and relatives or employers eligible to file petitions or labor certifications on their behalf, will not be deterred from initiating the process to legalize their status through fear that their filing will be used to identify and remove them.” Michael Pearson, Guidance on Initiation of Removal Proceedings and Section 245(i)of the Immigration and Nationality Act, HQOPS 50/12.2, April 27, 2001 (InfoNet Doc. No. 01050701, posted 5/7/2001).
A July 11, 2006 memorandum from Michael Aytes clearly contemplates expanding USCIS and ICE removal efforts. However, it does not specifically address the issue of 245(i)-eligible filers, and it does not appear to override the Pearson memo. Michael Aytes, Policy Memorandum No. 110: Disposition of Cases Involving Removable Aliens, July 11, 2006 (InfoNet Doc. No. 06090871, posted 9/6/2006). Further, USCIS stated in a 2006 liaison meeting it recognized that “USCIS does not want to overburden the removal process and the EOIR.” AILA-USCIS Liaison Meeting Minutes (9/26/06) (InfoNet Doc. No. 06112165, posted 11/21/06). There is no question that the issuance of NTAs to 245(i)-eligible applicants with no impediments to adjustment, other than USCIS and visa quota backlogs, will, in addition to gutting the very essence of INA 245(i), impose additional burdens on an already over-taxed EOIR. Finally, this new practice is clearly contrary to the statements of the new Administration to focus enforcement efforts towards those who they believe are a danger or threaten the safety of the country.
In the interim, however, it may be prudent to advise clients with pending I-140s who are out of status (whether or not they are 245(i) eligible) that they may receive an NTA from TSC shortly after I-140 approval. Withdrawal of the I-140 petition might avoid the issuance of an NTA; however, since AILA does not know what triggers are currently being used by USCIS to identify out-of-status applicants, whether or not this will successfully avoid the issuance of an NTA is unknown. The risk of losing a priority date may not be worth it, especially for 245(i)-eligible clients.
For clients who are not 245(i)-eligible, part of the decision may depend on whether the client is eligible for non-LPR Cancellation of Removal, which requires “exceptional and extremely unusual hardship” to a qualifying relative. The relief is discretionary and many clients may not have qualifying relatives. Remember that USC children are qualifying relatives for non-LPR Cancellation of Removal. Before considering withdrawal, you want to see if liaison and Congress correct the new TSC policy.
Finally, if your client is 245(i) eligible and has a severely backlogged priority date (e.g., Other Workers category), an IJ may not be willing to continue the case for adjustment at a later date when the priority date is once again available. You should be aware of the case law in your circuit on granting continuances to adjust. Some of the decisions turn on whether the priority date is current. In addition, the circuits are split on the issue of granting continuances, and there are also federal court jurisdictional issues on review of these decisions. Thus, relying on the potential grant of a continuance may be risky.
