Matter of H-G-G- (AAO 2019)

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Decided July 31, 2019
This is a decision where the Administrative Appeals Office (“AAO”) addressed a split between the Eleventh Circuit and the Sixth and Ninth Circuits.  The latter two circuits held that a grant of Temporary Protected Status (“TPS”) constituted an admission for the purpose of adjustment of status under section 245(a) of the Immigration and Nationality Act.

While a grant of TPS is still considered to cure unlawful status that accrues during the period of TPS – for example, for an applicant that seeks to adjust status as an employment-based immigrant or change nonimmigrant status – the AAO held that TPS does not confer a broad remedy for prior immigration violations and is not an admission for the purposes of adjustment of status under section 245(a).

During the period in which an individual has TPS, the individual is deemed to be in and maintaining nonimmigrant status for purposes of adjustment and change of status eligibility. By contrast, the provision does not specifically address the entirely separate requirement for adjustment of status under section 245(a) of having been admitted or paroled into the United States.

This decision is not binding in the Sixth and Ninth Circuits.

Changes to Scheduling Appointments at the Local USCIS Denver Field Office

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May 2019
In the past, if you needed to schedule an appointment to speak with someone at the local Denver USCIS Field Office, you could go online and schedule an “InfoPass” appointment.  However, anyone who has ever attempted to schedule an Infopass appointment knows the frustration of never being lucky enough to go online when an appointment was available.
As part of a new initiative, anyone who wants an appointment with the USCIS Denver Field Office will no longer be able to schedule it online via the old InfoPass system.  Now, to schedule an appointment, the public must call the USCIS 1 (800) number and be screened by a representative first.  Only if the representative believes there is a sufficient reason for scheduling the appointment will the representative escalate the case so that an appointment can be made.

If the situation meets USCIS’ criteria for obtaining an in-person appointment, then the representative will transfer the requestor to the next level of inquiry, Tier 2, where a second representative will call back the applicant in 24 to 48 hours to assist in scheduling a convenient appointment time.

One has to wonder whether this new initiative will actually increase transparency and efficiency.  Last year, the Denver USCIS Field Office discontinued the use of a dedicated attorney email which attorneys used to resolve issues that came up as part of representation.  Now, the USCIS Denver Field Office may become even more of a proverbial “black hole” of a mailroom.

USCIS Policy Update (Form I-751 Interviews)

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Issued December 10, 2018

USCIS recently announced a revision to the policy regarding when to waive an interview for the Form I-751 Petition to Remove Conditions on Residence. While the language of the policy memorandum is similar to the old policy, it is less verbose and perhaps will lead to less interviews being scheduled for petitions filed jointly and those filed individually by the immigrant.

USCIS Notice to Appear Policies in 2018

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In the past, USCIS and ICE did not work that closely. If a case were denied with USCIS and the applicant was not legally present in the United States, the individual would generally not be placed in removal (AKA deportation) proceedings. In fact, it could even work against the immigrant in cases where judicial review was needed – resulting in a type of legal “limbo.”

Now if a case is not strong, and does not have a great likelihood of approval, it should not be filed in the first instance as a denial will most certainly trigger removal proceedings. In an policy memorandum from USCIS entitled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear(NTAs) in Cases Involving Inadmissible and Deportable Alien, USCIS made clear that it will place individuals in removal proceedings if their case is denied, even absent criminal history, so long as they are not otherwise lawfully present in the United States (see Section V).

This is a radical departure from past policy. Incredibly, USCIS will also implement this policy against applicants for Violence Against Woman Act protection (i.e., U-Visa victim cases and human trafficking cases). In a press release dated November 11, 2018, USCIS indicated that these individuals will be placed in removal proceedings starting November 19, 2018. USCIS News Update. This policy is part of Trump’s War on Immigration, representing another brick in the invisible wall. It will prevent victims from seeking assistance and working with law enforcement out of fear of being removed from the United States.

Fortunately, DACA recipients are not included in the net – perhaps partly because it would be too politically unpopular. According to a clarifying policy memorandum published on June 28, 2018 (HERE):

Notwithstanding the issuance of the PM titled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, when (1) processing an initial or renewal DACA request or DACA-related benefit request or (2) processing a DACA recipient for possible termination of DACA, USCIS will continue to follow the existing DACA information-sharing policy regarding any information provided in a DACA request or DACA-related benefit request. Consistent with that policy, which has been in effect since June 2012, and notwithstanding the General NTA PM, adjudicators must continue to refer to PM 602-0050,Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, 6 dated November 7, 2011, to determine whether an RTI or NTA should be issued in such cases.
Therefore, in DACA cases, the Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, 6 dated November 7, 2011 policy memorandum continues to apply, and DACA applicants will be referred to removal proceedings in cases involving certain criminal and other public interest concerns.