USCIS has issued a Policy Memorandum updating the guidelines USCIS officers use to determine when to issue a Notice to Appear (NTA). An NTA is a document given to an alien that instructs them to appear before an immigration judge on a certain date. The issuance of an NTA commences removal proceedings against the alien.
Under the updated guidance, USCIS officers will now issue a Notice to Appear 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.
The updated policy generally requires USCIS to issue an NTA when the foreign national is removable under the following circumstances:
- Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits.
- 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.
NOTE: USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request 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.
The revised policy does not change the policy for issuing NTAs in the following categories:
1. Cases involving national security concerns;
2. Cases where issuing an NTA is required by statute or regulation;
3. 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;
4. DACA recipients and requestors when
a. processing an initial or renewal DACA request or DACA-related benefit request; or
b. processing a DACA recipient for possible termination of DACA.
The update policy would significantly impact situations where a visa extension petition has been timely filed, but is pending beyond the validity date of I-94.
If you have any questions about the impact of the new policy in your situation or need advice in filing for a visa extension petition or immigration benefit, consult an experienced VisaPro immigration attorney.