UPDATED: July 30, 2018.
On Monday, July 30, 2018, the U.S. Citizenship and Immigration Services released a statement notifying stakeholders that the implementation of new guidance regarding Notices to Appear (NTA) and Referrals to ICE (RTIs) is pending until operational guidance is issued.
On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance, dated June 28, 2018, regarding Notices to Appear (NTA). The issuance of an NTA commences removal proceedings against the alien. An NTA is a charging document that is issued to foreign nationals, placing them in removal proceedings and directing them to appear in immigration court before an immigration judge.
How will this new policy affect me?
Under the new guidance, USCIS officers will now issue an NTA 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. As a result of the new policy, NTAs will be issued to every person who is “not lawfully present” in the United States at the time an application, petition, or request for an immigration benefit is denied.
The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:
- 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.
- 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.
- Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
- Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.
What has not changed?
The revised policy does not change the USCIS policy for issuing an NTA in the following categories:
- Cases involving national security concerns;
- Cases where issuing an NTA is required by statute or regulation;
- 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;
- 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.
Special Considerations for DACA Recipients
Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance 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. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance (PDF, 77 KB) to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.
If you are affected by these developments and would like information about the implications of these policy changes for your immigration case, please contact us. We are here to help. Follow us on Instagram, Twitter, Facebook, LinkedIn or Tumblr for up-to-date immigration news.
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