Reported by Matthew Oh, Attorney
06/23/2006: Growing Trend of Commencement of Removal Proceedings Upon Denial of I-485 Applications and Suggested Options to Cope with the Changing Environment
The USCIS Director and the Deputy Director consistently confirmed here in San Antonio that there would be a growing trend of issuance of NTA upon denial of I-485 applications if the alien was not in a valid nonimmigrant status. The NTA is the first step of the agency to commence removal (deportation) proceeding. Legally, the Service Centers and other field offices of the USCIS were authorized to issue NTAs when the alien was not in a valid nonimmigrant status, but as the country is moving towards the direction of reinforcement of the system to control illegal aliens and immigration status violators, the USCIS is also apparently pressured to participate in the action. For the reasons, a growing number of EB-485 applicants will face NTAs from here on. Under the rules, once the NTA is issued, the jurisdiction is swifted to the Immigration and Customs Enforcement (ICE) and the immigration courts from the USCIS.
There are three things the applicants should keep in mind to cope with the forcecoming changes in the immigration environment:
(a) As the House Judiciary Subcommittee hearing on June 22, 2006 strongly suggested, the DOL and USCIS would move towards increased enforcement of employment-based nonimmigrant and immigrant status violators including employers and employees through cross check of actual payment and labor condition applications and labor attestations, and DOL will be pressured to search and go after the these violators (employers and employees). Until now, the LCA or labor attestations enforcement has been driven by the disgruntled current or former employees and the cases that have been brought to the enforcement actions have been limited in numbers. However, this may change as the agency may be pushed to initiate the process rathen than driven by the complaints. Employers and employees should be more mindful of "compliance with the labor condition applications and labor attestations."
(b) As the proceedings are electronized and the databases are increasingly shared among agencies and the databases are accessible by all the agencies involved, the immigration benefit proceedings, including nonimmigrant and immigrant proceedings, will be increasingly linked to these databases and the violators will be easily detected by these agencies as the GAO report of June 22, 2006 indicated. Such change will involve and lead the USCIS which is not immigration law enforment arm of the DHS to be dragged into the enforcement processing in the form of issuance of NTA. They will be plugged into the enforcement process at the front-end. The employers and employees should be more mindful of the evidence and supporting documents which they submit to the USCIS.
(c) The 485 applicants may be better off maintaining nonimmigrant status such as H-1B all the way in order to avoid the potential commencement of deportation proceeding by the Service Centers and field offices upon denial of I-485 applications. In this regard, the aliens should carefully review desirability of working on EAD and Advance Parole considering the changing environment.
The employers and the alien employees are advised to seek legal counsel on the issues which are raised in this posting, including review of compliance of labor condition applications and attestations, and options against the consequences of denial of I-485 applications.