September 28, 2018

USCIS Holds Teleconference on Revised Notice to Appear Policy Memorandum

On September 27, 2018, USCIS held a teleconference regarding the policy memorandum “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 an individual to appear before an immigration judge and is the first step in removal proceedings, otherwise known as deportation.

Under the new policy, which USCIS plans to begin implementing on October 1, 2018, USCIS may issue a Notice to Appear in the following instances:

· If fraud, misrepresentation, or evidence of abuse of public benefits is part of the record, and the individual is removable, even if the case is denied on other grounds.

· In many cases where an applicant is charged with, convicted of, or has committed acts chargeable as a criminal offense, and the individual is removeable. USCIS may also refer such cases to ICE without issuing an NTA or adjudicating an immigration benefit application.

· When an N-400 application for naturalization is denied based on good moral character grounds for an underlying criminal offense.

· Upon receiving a Form N-400 if (1) the applicant is eligible to naturalize but is also deportable (examples include applicants convicted of aggravated felonies prior to

November 29, 1990, or applicants convicted of deportable offenses after obtaining lawful permanent resident (LPR) status), or (2) it is determined that the applicant was inadmissible at the time of adjustment to the U.S.

· Where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the individual is not lawfully present in the United States.

· For individuals with Temporary Protected Status (TPS), USCIS will first follow previously established regulatory guidance. Once the TPS regulatory provisions have been followed, officer will issue an NTA to individuals who have no other lawful immigration status or authorization in the U.S. following denial of a TPS request.

According to USCIS officials, this policy will be incrementally implemented. This policy will not affect employment-based petitions and humanitarian applications and petitions at this time. USCIS officials further clarified that Form I-140 or Form I-129 petitions will not be subject to the policy for now. Denials issued beginning October 1, 2018 will be subject to the new policy regardless of when the petition was initially filed.

USCIS will not issue NTAs immediately after an application’s denial. Rather, USCIS stated it will wait until the expiration of the appeal period to issue the NTA. For more information about USCIS’s new NTA policy, please contact our office.

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