On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) provided new guidance regarding issuances of Notices to Appear (NTA). This new guidance states that USCIS officers will now issues NTAs for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.

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 does this new guidance change? Prior guidance shifted NTA issuance to U.S. Immigration Customs Enforcement (ICE) to allow USCIS to focus on its primary responsibility of adjudications of immigration benefits. Overturning more than a decade of consistent practice, this new guidance requires USCIS to function as another enforcement arm of the Department of Homeland Security. USCIS will now 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.

What is not affected by this new guidance? The following categories are not affected by the new guidance:

  1. Cases involving national security concerns;
  2. Cases where issuing an NTA is required by statute or regulation;
  3. 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;
  4. 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.

Who is impacted by this new guidance? Individuals who have lived and worked in the U.S. legally but whose applications to extend their stay or move to new jobs are unexpectedly denied by USCIS due to changing USCIS policies will be issued an NTA and placed in removal proceedings. Individuals who receive an NTA will be unable to depart from the U.S. even if they want to and will be forced into the court system. Likewise, foreign students who are rendered out of status due to recent changes in USCIS requirements will receive NTAs. This is significant due to the severe backlog in the immigration court system, which had reached 700,000 cases as of May 31, 2018.

Several examples will elucidate the significance of this new guidance:

Imagine a foreign national who has held H-1B status for years who files an application to extend their H-1B status. His application to extend H-1B status is denied, and due to USCIS processing backlogs, his underlying H-1B status expires by the time USCIS gets around to reviewing his case. This foreign national would be issued an NTA and placed directly into removal proceedings.

Imagine a foreign nation who has multinational manager or executive L-1A status who is pursuing permanent residency in the United States. She has already filed an I-140 petition and permanent residency application for EB-1 Multinational Managers and Executives, but her underlying L-1A status expires while her petition and application for permanent residency is pending due to the lengthy processing time for the green card process. If USCIS unexpectedly denies her adjustment of status application, she will be issued an NTA and placed directly into removal proceedings.

In summary, the new guidance requires USCIS to issue an NTA to every individual who is “not lawfully present” in the United States at the time an application, petition, or request for an immigration benefit is denied.

Please do not hesitate to contact our offices for any questions or concerns you may have regarding this matter. Our offices will keep you up to date regarding any further developments.