On September 27, 2018, the United States Citizenship and Immigration Services (USCIS) hosted a teleconference to discuss the new guidance regarding issuances of Notices to Appear (NTAs) that was issued on June 28, 2018.

What is a Notice to Appear? Form I-862, Notice to Appear (NTA), is a document issued to foreign nationals who are deemed “removable” from the United States. Recipients of NTAs must appear before an immigration judge to determine whether they should be removed from the United States or be entitled to some type of removal relief that allows them to legally remain in the United States.

What are the criteria for receiving an NTA? As mentioned in a previous article, the new guidance states that USCIS officers will be required to issue NTAs for the following cases:

  1. 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.
  2. 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.
  3. Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  4. Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

Below are updates and clarifications regarding how this new guidance will be executed:

  1. At this time, this expansion of issuing NTAs will not be applied for employment-based petitions and humanitarian applications and petitions at this time.
  2. Effective October 1, 2018, USCIS officers will begin to issue NTAs for denials for Form I-485, Application to Register Permanent Residence or Adjust Status and Form I-539, Application to Extend/Change Nonimmigrant Status where they found evidence of any of the criteria mentioned above.
  3. Regardless of when an application was filed, USCIS will issue an NTA where they find evidence of any of the criteria mentioned above.
  4. USCIS may refer a case to U.S. Immigrations and Customs Enforcement (ICE) without the issuance of an NTA.
  5. USCIS will issue an NTA when an applicant for a Form N-400, Application for Naturalization is deportable.
  6. USCIS will still issue an NTA even if the original application is withdrawn.
  7. When USCIS issues a denial notice, they will wait for the appeal period to end (33 days) before issuing an NTA. However, in certain instances, USCIS may also provide a shorter appeal period.
  8. USCIS will issue an NTA if an applicant is removable even if a case is denied for reasons other than fraud.
  9. Criminal offenses which make someone removable are listed in:
    1. INA section 212(a)(2)
    2. INA section 237(a)(2)

USCIS will continue to provide updates and further guidance on this matter. Our offices will keep you up to date regarding any further developments. Please do not hesitate to contact our offices for any questions or concerns you may have regarding this matter.