Issuances of Notices to Appear Following Denial of Certain Benefits, Petitions, and Applications
This guide will explain the policy memorandum issued by Department of Homeland Security’s United States Citizenship and Immigration Services (“USCIS”) on June 28, 2018.
Executive Order 13768 - Pre-June 28, 2018 USCIS PolicyOn January 25, 2017 the President of the United States signed Executive Order 13768 setting forth updated priorities for removal of foreign nationals from the United States, including referral of cases by the Department of Homeland Security*s United States Citizenship and Immigration Services (*USCIS*) to the Department of Homeland Security*s Immigration and Customs Enforcement (*ICE*).
USCIS's June 28, 2018 - Memorandum SummaryOn June 28, 2018, USCIS issued a policy memorandum regarding when it will issue a notice to appear (*NTA*) to have someone placed in removal proceedings after the denial of that person*s benefits petition or application. The current policy calls for issuance of an NTA in the following scenarios:
1. Denial on or after October 1, 2018, regardless of date of filing, of adjustment-of-status applications (I-485) and applications to change/extend nonimmigrant status (I-539) where such denial renders the relevant foreign national without valid status within the United States;
2. Denial on or after November 19, 2018, regardless of date of filing, of any humanitarian benefits petition or application, including U-nonimmigrant-status petitions (I-918), T-nonimmigrant-status applications (I-914), VAWA-abused-spouse self-petitions (I-360), Special-Immigrant-Juvenile-Status petitions (I-360), derivative-refugee-and/or-asylee petitions (I-730), and related filings; and
3. Denial on or after October 1, 2018, regardless of date of filing, of any naturalization application (N-400) where the applicant is removable, including those applicants who are deportable for certain criminal history, who obtained their Lawful Permanent Residence unlawfully, and/or who are unable to establish the requisite good moral character.
USCIS has to date withheld applying the new NTA policy to denials of employment-based petitions (I-129).
USCIS has also clarified that the basis of the denial of the underlying benefits petition or application does not necessarily dictate whether the case will lead to issuance of an NTA or be referred to ICE. For example, cases where fraud or misrepresentation is substantiated and/or where there is evidence that the relevant foreign national abused any program related to receipt of public benefits would result in issuance of an NTA even if the reason for denial of the underlying benefits petition or application does not rely on such activities. Furthermore, criminal cases where the relevant foreign national is convicted of, or charged with, a criminal offense or committed acts that are chargeable as a criminal offense can result in referral to ICE before adjudication of the underlying benefits petition or application is completed even if the criminal conduct was not the basis for the prospective denial or a ground of removability.
While USCIS maintains discretion over whether to issue an NTA, how such discretion would be exercised has not been revealed. Fortunately and except for certain criminal and national-security-related cases, USCIS most likely will not issue an NTA until all motions and/or appeals have been adjudicated thereby rendering final the denial of the underlying benefits petition or application.