The PM discusses when the agency will issues Notices to Appear (NTA). While most of the memorandum is focused at illegal immigration and those with criminal violations, there is a clause in this policy memorandum that employment-based immigration attorneys should be familiar with, and should be prepared to advise their clients on.
Aliens Not Lawfully Present in the United States or Subject to Other Grounds of Removability
USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.
For aliens removable under any other grounds not specifically addressed in this PM, USCIS will ensure all grounds for removability supported by the record are addressed and result in the issuance of an NTA, whenever appropriate.
What this means is the agency “will issue an NTA” when your client’s application for any benefit has been denied. If the agency denies an H1B extension USCIS will follow that up with an NTA.
This leaves your client with one of two options: file an administrative appeal of their denied petition while they are in removal proceedings, or file an APA case in district court and invoke Section 705 asking for the court to grant interim benefits while the case is pending.
APA litigation has not been a staple of the business immigration attorney, much less have attorneys marched into court asking for relief under 705. However, a district court judge has the power to enter an order preserving status pending a final order in the case.
The district court is an impartial decision maker, and reviews denials on a much more stringent standard than the agency does on an internal appeal. The AAO on the other hand is a body devoted to enforcing agency policy, no matter how flawed or illegal.
The take away is this: be ready to file in district court the moment your client gets a denial