Second phase of USCIS ‘Notices to Appear’ policy implementation excludes employment-based applicants

8 Nov 18

UNITED STATES

U.S. Citizenship and Immigration Services (USCIS) announced today it will implement the second phase of its policy memo on the issuance of “Notices to Appear” in cases involving inadmissible and deportable foreign nationals beginning Nov. 19, 2018.

The policy memo issued by USCIS earlier this year generally expands the agency’s discretion to issue a Notice to Appear (NTA) to individuals whose petition or application with USCIS is denied. The NTA is an official charging document USCIS issues as the first step to initiating removal proceedings and arguing the reasons why the recipient is no longer eligible to stay in the U.S. The NTA also instructs the recipient to appear before an immigration judge.

Key points:

  • USCIS will not implement the policy for employment-based petitions at this time, and existing policy for those cases remains in effect.
  • The agency has reiterated its intent to implement the policy memo incrementally but has not indicated when employment-based applicants will be covered by the new policy.
  • In the second phase, beginning Nov. 19, USCIS will issue NTAs to individuals whose applications in the following categories are denied: Refugee/asylum petitions within the U.S., T visas for victims of human trafficking, U visas for victims of crimes and their family members, Amerasian, Widow(er) petitions, self-petitions under the Violence Against Women Act and Special Immigrant Juvenile petitions, and adjustment of status applications related to the above petitions.

Background: The updated policy memo was issued in June 28, 2018. Under the new policy, individuals whose petition or application is denied by USCIS will no longer be in a period of authorized stay and may be issued an NTA that starts deportation proceedings. Implementation of the policy was delayed, however, and the agency decided to carry it out in phases. The first phase, implemented on Oct. 1, 2018, concentrated on denied I-485 and I-539 applications.

BAL Analysis: Implementation of the policy for employment-based petitions and applications will continue to be delayed at this time and individuals receiving denials should therefore not receive a Notice to Appear on the basis of a denied employment-based petition. USCIS has said it will continue to take an incremental approach to implementing the policy. The agency will hold a stakeholder engagement on Nov. 15, 2018, at 2 p.m. EST on the policy memo and respond to pre-submitted questions. Information on attending is available here and USCIS will post updates on implementation of the NTA policy on a dedicated Notice to Appear Policy Memorandum page. BAL will continue to monitor future phases of this policy.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.