USCIS Notice to Appear (NTA) Policy Implementation Begins – What to Expect?

On October 1, 2018, the U.S. Citizenship and Immigration Service (USCIS) began implementing the new policy regarding issuance of Notice to Appear (NTA) regarding certain inadmissible and deportable foreign nationals who are in the U.S.    USCIS is starting to issue NTAs on denied status-impacting applications including I-485 (Application to Adjust Status) and I-539 (Application to Extend/Change Status).   The good news is that employment-based I-129 petitions are not subject to NTAs at this time.

What is NTA?

A Notice to Appear, or NTA, is a charging document that is filed with an immigration court indicating the government’s intent to  remove (or deport) a foreign national who is in the U.S.  Someone who received an NTA must appear in front of an immigration court at a future date.

The immigration court hears arguments and reviews evidence presented and then makes a determination whether the person should be removed from the U.S.    A removal proceeding and challenging NTA in court does not normally stop the period of unlawful presence and does not grant an independent right to stay and work in the U.S. (and unlawful presence of more than 180 days causes ban on entering the U.S.  See more on unlawful presence.)    An alternative is to consider voluntary departure whereby one agrees to leave the U.S.    There are multiple procedural and substantive aspects of a removal proceeding which are beyond the scope of this article.

The June 28, 2018 Updated NTA Policy and Guidance 

The June 28, 2018 memorandum — Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens — expands significantly the circumstances under which USCIS intends to issue an NTA or refer a case to Immigration and Customs Enforcement (ICE) for them to issue NTA.      Please also see USCIS’s press release.

The new NTA policy allows (and in some cases requires) USCIS to issue or refer for NTA issuance a person who falls under the following categories:

• Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases where an applicant is convicted of or charged with 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 may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

Issuance of NTAs Upon Denial of an Application and Unlawful Presence

One of the most significant and troubling aspects of the new policy is that USCIS now plans to issue NTAs for cases where an applicant for status who is deemed to be unlawfully present is subject to NTA.       According to a September 26, 2018 guidance, USCIS plans to issue NTAs where,

Starting Oct. 1, 2018, USCIS may issue NTAs on denied status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.

USCIS 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 applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS 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.

As described by this guidance,  we expect that USCIS will advise applicants who have had a I-485 or I-539 application denied and who are otherwise beyond the expiration of their I-94 authorized period of stay that they may be subject to an NTA if they do not depart.    USCIS is expected to revise their denial notices to warn applicants in such circumstances.    We will monitor this closely and see if these notices are adequately and clearly given as part of I-539 and I-485 denials.

USCIS is not expected to immediately issue NTAs upon such denials; instead, they are expected to wait until any applicable motion or appeal periods have ended before doing so.

I-129 Petitions Denials Are NOT Subject to NTA (at This Time)

USCIS has confirmed that, at this time, they do not intend to implement the NTA Policy Memo with respect to employment-based petitions and humanitarian applications.     This means that at this time an overstay of an employment-based I-94 (such as H-1B, L-1, etc.) and a denial of an I-129 petition will not cause an NTA to be issued.   USCIS reserves the right to change their approach and start issuing NTAs for I-129 petitions in the future.

We still caution that overstaying I-94 or otherwise being unlawfully present may have very serious negative implications so a prompt review and action may be needed to try to depart the US or, in some cases, reinstate status.

Conclusion

Our office will continue to monitor developments relating to how this new policy will be implemented and enforced by USCIS.    We caution, however, that all I-539 and I-485 applicants to very carefully understand the implications of their status applications and what may happen if such application is denied.

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