On October 1, 2018, USCIS is set to begin implementing their new policy memorandum for referring cases and issuing Notices to Appear (NTA) in cases involving inadmissible and deportable aliens. USCIS advises that it will be taking an incremental approach to implementing the memorandum which was initially released in June of this year.

A Notice to Appear (NTA) is the first step in initiating removal proceedings and is issued to inform an individual that they are to appear before an immigration judge. Starting October 1, 2018, USCIS may issue NTAs on denied status-impacting applications which include applications to adjust status (Form I-485), applications to extend/change nonimmigrant status (Form I-539), among others.

Pursuant to the new policy memorandum, USCIS will send denial letters for status-impacting applications and if applicants are no longer in a period of authorized stay, and do not depart the US, an NTA may be issued. USCIS advises that they will be providing details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate their departure from the US.

Notably, employment-based petitions and humanitarian applications and petitions are not subject to the June 2018 NTA Policy Memo at this time and USCIS has indicated that existing guidance for these case types will remain in effect. USCIS has also indicated that they will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns and that there has been no change to the current processes for issuing NTAs on these case types.

So, what types of cases does this policy memorandum affect if an individual is deemed removable?

• Cases where fraud or misrepresentation is substantiated, and/or cases where there is evidence that the applicant abused any program related to receiving public benefits.

• Criminal cases where an applicant is charged with (or convicted of) a criminal offense, or committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability.

• Cases where USCIS denied a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense. 

• Cases where an applicant will be unlawfully present in the United States when USCIS denies the petition or application.

What types of cases remain unchanged by the USCIS policy memorandum?

• Cases involving national security concerns.

• Cases where NTA issuance is required by statute or regulation.

• Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal would result in an individual having no other lawful immigration status.

• Cases involving deferred action for childhood arrivals (DACA) recipients and requestors 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. (There is a separate policy memorandum that applies to cases involving DACA recipients and requestors.)

USCIS will be providing updates and information on the implementation of their new NTA Policy Memo on their website.  If you have questions regarding USCIS’ new NTA Policy Memo and/or how it may impact you, please reach out to our office to schedule a consultation.