USCIS today issued notification that it will delay implementation of the NTA Policy memo of June 28, 2018 (which I discussed in my previous post) until they get more operational guidance. This is good news and hopefully, they will consider the full ramifications of such a policy before going forward.
July 13, 2018 Memo titled "Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)”
Date effective - September 11, 2018
This policy memo was issued to provide guidance to USCIS officers regarding the discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility. It rescinds the June 3, 2013 PM titled “Requests for Evidence and Notices of Intent to Deny” (2013 PM) which provided that an officer should issue an RFE in most circumstances unless it was clear that no document could be provided that would cure the deficiency in the filing.
Under the new policy, the officer is no longer required to issue an RFE or NOID first. They can deny cases directly “for failure to establish eligibility based on lack of required initial evidence.” This could affect all types of employment-based and family-based cases which are missing forms or other required documentation. USCIS has said that this change is being made mainly to deter people from filing frivolous or "place-holder" petitions but it remains to be seen as to how they will implement this policy. It is imperative that all petitions should be filed with all the required documents as there may not be a chance to correct them or provide additional documents, under this memo.
Please contact our office to schedule a consultation if you would like more information on the above policy memorandums and to discuss how it might affect you.
June 28 Memo titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” (“NTA Policy Memo”)
Date effective - Immediate (the agencies have 30 days to resolve how they will implement it).
On June 28, 2018, USCIS issued the NTA Policy memo. This memo supersedes a 2011 policy memorandum and expands the circumstances under which USCIS officers could issue an NTA. The NTA Policy memo is a result of the implementation memorandum issued by DHS Secretary John Kelly related to the President’s enforcement priorities in his President’s Executive Order 13678, Enhancing Public Safety in the Interior of the United States.
The NTA Policy memo states that USCIS will issue NTAs in the following cases -
A Notice to Appear is a charging document issued by the Department of Homeland Security to place foreign nationals in removal proceedings. Of particular interest is the 5th prong of the memo which is explained in the memo thus, “USCIS will issue an NTA where, upon issuance of an unfavorable decision on a application or petition, or benefit request, the alien is not lawfully present in the United States.” This is alarming because it now means that if any application, petition, or benefit request is denied by the USCIS and the foreign national is not lawfully present, USCIS will issue an NTA. Also, if a lawfully present individual’s application or petition is denied and he or she is removable, USCIS will issue an NTA if he or she falls into one of the other specific enforcement categories listed above.
If any of your employees is issued an NTA after the denial of a petition, please notify our office immediately as time is of the essence and it will be important to formulate a strategy to help the beneficiary. Please note that USCIS is only required to mail the NTA to the last-known address of the beneficiary. Therefore, it is also important for the beneficiary to update their address with USCIS in a timely manner, if they move. Once an NTA is issued, the foreign national must appear before an Immigration Judge to determine if the foreign national must be removed from the country or if he/she is entitled to any other form of relief. Failure to apply at a court proceeding under the NTA could result in the issuance of an in-absentia order of removal which bars re-entry into the US for 5 years.
In light of the above memo, it is very important to discuss all possibilities before filing extensions/change of status petitions and to try and file them in a timely manner. Most extension petitions can be filed 180 days before the expiry of the current petition. There are many options that can be considered, including filing under Premium processing (so the decision is obtained before the expiry of the current I-94) or requesting Consular processing of the extension or change of status petition (to allow the alien beneficiary leave the country when their I-94 expires). These policies will affect immigrant visa petitions like I-140 and I-485 petitions also and it is important that the beneficiary should continue to maintain their underlying non-immigrant visa status while their Adjustment of status petition is still pending.