The USCIS intends to take an “Incremental Approach” when Implementing the NTA Policy Memorandum
On June 28, 2018, the USCIS released a Policy Memorandum called “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” An NTA is a document that orders a foreign national to appear before an immigration judge in order to begin removal proceedings (deportation).
The new Policy Memorandum is an effort by the USCIS to comply with President Trump’s January 25, 2017 Executive Order (13768) in which he “articulated the priorities for the removal of aliens from the United States.”
The memorandum prioritizes the issuance of NTAs for (and removal of) aliens who: “(1) Have been convicted of any criminal offense; (2) Have been charged with any criminal offense that has not been resolved; (3) Have committed acts that constitute a chargeable criminal offense; (4) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (5) Have abused any program related to receipt of public benefits; (6) Are subject to a final order of removal, but have not departed; or (7) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.”
Since the memorandum was issued earlier this year, it has brought about a lot of concern due to the fact that it also states that the “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.” This statement stands in contrast to the regulations that have previously provided for a 60-day grace period after the denial of an immigration benefit to allow foreign nationals to depart the United States without consequence and without risk of removal proceedings.
On September 26, 2018, the USCIS issued clarity on how the policy memorandum will go into effect starting October 1, 2018. The USCIS has stated that they will take an incremental approach to implementing the policy memorandum and that “the June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.” This means that the 60-day grace period given to recipients of H-1B/L-1 denials will remain in effect for now.
However, the USCIS has stated that beginning on October 1, 2018, they may issue NTAs on “denied status impacting cases,” such as I-485 Adjustments of Status and I-539 Applications to Extend or Change Nonimmigrant Status, among others.
The USCIS has also clarified that they will continue to prioritize the removal of individuals with a criminal background, individuals that have committed fraud or misrepresentation, and individuals that pose a threat to national security.
At this time, it is not clear how or when the NTA policy memorandum will affect cases of nonimmigrant denials moving forward.
Please feel free to contact USILAW with any questions or issues that you may have. You may reach us via telephone at +1 (202) 618 4540 or via email at anindita@usilaw.com.
