USCIS issued an update to its previously reported USCIS policy memorandum issued on June 28, 2018 (Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens Policy Memorandum (PM) (PDF, 140 KB) regarding increased issuance of Notices to Appear (NTA). USCIS delayed the implementation of that policy in order to make adjustments and coordinate implementation.
On September 26, 2018, USCIS announced that effective October 1st, it will phase in implementation of its broader authority to issue NTAs. At this time, the agency will not be implementing these new policies in non-immigrant visa petitions requiring Form I-129 (i.e., employment based nonimmigrant petitions including H, L, and O categories).
At this time, USCIS will apply the increased NTA issuance policy to applications for adjustment of status (Form I-485), extension of stay/change of status (Form I-539), and naturalization to become a U.S. citizen (Form N-400). Where USCIS denies the benefits sought, it can issue NTAs in the following cases:
- Cases where fraud or misrepresentation is substantiated, and/or cases where there is evidence the applicant abused any program related to receiving public benefits. NTAs will be issued even if the case is denied for reasons other than fraud.
- Criminal cases where an applicant is charged with (or convicted of) a criminal offense, or 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 will refer these case to Immigration & Customs Enforcement (ICE) without issuing an NTA or adjudicating immigration benefits.
- Cases where Form N-400, Application for Naturalization, was denied on good moral character grounds due to a criminal offense.
- Cases where an applicant will be unlawfully present in the United States when the petition or application is denied.
USCIS has stated that it will not issue an NTA immediately after the denial notification, but rather at the end of the appeals period (33 days) or revocation period (18 days). This period of time is intended to allow the applicant time to leave the U.S. If the applicant does not leave the U.S. or have another means of remaining in valid status, USCIS may then issue an NTA. For these reasons, we continue to urge that where possible, nonimmigrant status should be maintained throughout the duration of a Form I-485 application. This is typically available where the individual is continuing to work for his/her H-1B or L-1 employer. For I-539 applications, they should be filed as early as allowed for extensions in an effort to have the extension or change of status approved prior to the expiration date of the current I-94. This is not always practicable given processing times. Additionally, individuals should continue to be careful to confirm that Form I-94 records in the CBP database are accurate after each and every entry to the United States—remember that if your passport expires before the H-1B or L-1 petition expires, your stay will be limited to the end date of the passport. Always review your Form I-94 record and track the I-94 expiration date as your key status document.
If you are a Jackson & Hertogs client and have questions about how this policy may affect your situation, you can arrange for a consultation with your attorney.
USCIS will publish ongoing updates on this Policy Memo implementation at its Notice to Appear Policy Memorandum page.
