USCIS to Begin Implementing NTA Policy
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
As of October 1, U.S. Citizenship and Immigration Services (USCIS) could start removal proceedings against some foreign nationals without underlying immigration status if their applications are denied and they do not leave the United States.
USCIS first announced the Notice to Appear (NTA) policy in July 2018, but decided to delay its implementation. USCIS said it will initially apply the policy to Form I-485 permanent residence applicants and to Form I-539 applicants to extend or change nonimmigrant status. Employment-based petitions (including H-1B, L-1, O and E petitions) are not currently subject to the policy. The NTA policy also exempts humanitarian applications. Existing guidance for employment-based and humanitarian case types will remain in effect, USCIS noted.
USCIS said it “will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied.” If a person is not in a period of authorized stay and does not leave the United States, he or she may be issued an NTA. USCIS said it “will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.” An immigration judge would determine whether the person should be removed or is entitled to relief that would allow him or her to remain in the U.S. USCIS noted that “[e]xcept as specifically provided by law, the issuance, service, or filing of an NTA to commence removal proceedings does not negate any right to seek administrative review, whether by motion to the USCIS office that issued the unfavorable decision, or by appeal to the USCIS Administrative Appeals Office.”
USCIS noted that it “will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns. There has been no change to the current processes for issuing NTAs on these case types, and USCIS will continue to use its discretion in issuing NTAs for these cases.”
Specifically, USCIS said the updated policy affects the following categories of cases where the individual is removable:
- Cases where fraud or misrepresentation is substantiated and/or cases where there is evidence the applicant abused any program related to receiving public benefits. USCIS said it will issue an NTA in these cases “even if we deny the case for reasons other than fraud.”
- Criminal cases where an applicant is charged with (or convicted of) a criminal offense, or has 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. USCIS said it will, where circumstances warrant, refer cases to U.S. Immigration and Customs Enforcement without issuing an NTA or adjudicating immigration benefits.
- Cases where USCIS has 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.
USCIS did not change its policy for the following categories:
- Cases involving national security concerns.
- Cases where issuing an NTA is required by statute or regulation.
- Temporary protected status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results 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. A policy memorandum on DACA recipients referenced by USCIS’s NTA announcement can be viewed here.