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.