Denied Applicants Risk Removal Proceedings

Erick Widman

Beginning in October 2018, USCIS may start removal proceedings on individuals who submit an application for a visa status or permanent residency in the United States but get the application denied.   This would only apply to those applicants who no longer have a valid visa status at the time of the denial decision from the USCIS.

Typically, an applicant who files a timely and non-frivolous application to the USCIS to seek an immigration benefit such as change or extension of a visa status will be considered to be in lawful status even if the underlying visa has expired before the USCIS makes a final decision on the application.  Previously, it has been the long-standing policy of the USCIS to consider itself as a service center and not an enforcement agency, and it would not initiate any removal proceedings except for certain rare cases. Therefore, if an application gets denied by the USCIS, the applicant could still remain in the United States and decide the next appropriate course of action such as filing an appeal or seeking another visa status.

However, with this new USCIS policy, applicants may face the harsh consequence of having to deal with lengthy removal proceedings at the immigration court when they all but complied with the immigration law which permits them to legally stay in the U.S. while waiting for the lengthy adjudication process of their application.  With increasing delays of USCIS processing time, it is now imperative to carefully plan ahead the appropriate strategy to maintain one’s valid visa status while the application is pending.

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