Foreign nationals whose applications have been denied may now receive a Notice to Appear in immigration court if they remain in the United States.

A new U.S. Citizenship and Immigration Services (USCIS) Notice to Appear (NTA) policy took effect on October 1.

Permanent residence applicants (Form I-485) and those seeking extensions or changes to nonimmigrant status (Form I-539) are now subject to receive an NTA after their authorized stay expires.

Humanitarian petitions and employment-based petitioners (H-1B, L-1, O, and E applications) are currently exempt from this policy.

NTAs will not be automatically issued on denial. An immigration judge will determine whether the person should be removed or is entitled to relief that would allow him or her to remain in the United States.

Individuals who receive an NTA can still request administrative review, whether by motion to the USCIS office that issued the unfavorable decision or by appealing to the USCIS Administrative Appeals Office.

A June 2018 memo announcing new NTA policies stated that this update will better align immigration regulations with current enforcement priorities as articulated in Executive Order 13768.

This order was signed by the President on Jan. 25, 2017 and provides that the federal government will no longer exempt classes or categories of removable noncitizens from potential immigration enforcement.

In February 2017, DHS issued a corresponding implementation memo with guidance on enforcement priorities and emphasis on prioritizing the removal of noncitizens who:

  • Have been charged with or convicted of any criminal offense;
  • Have committed any kind of fraud or misrepresentation before a government agency;
  • Have abused any public benefit program;
  • Have not departed despite being subject to a final order of removal; or
  • Otherwise are deemed to pose a risk to public safety or national security.

As such, the new NTA policy issues modified guidance in the following kinds of cases:

  • Substantiated fraud or misrepresentation;
  • Evidence of public benefit abuse;
  • Criminal charges and convictions, regardless of if this conduct was the basis for denial;
  • Moral character denials issued due to criminal offense; and
  • Unlawful alien presence, including remaining in the United States after a petition or application is denied.

The NTA policy will continue to prioritize cases of fraud, criminal activity, and national security concerns, USCIS stated.

Denial letters will contain adequate notice for individuals whose status is impacted as well as details on how applicants can access information about authorized stay to remain in compliance with travel and departure requirements, USCIS stated.

Policy was not changed for national security concern cases, most temporary protected status (TPS) cases, or certain Deferred Action for Childhood Arrivals (DACA) cases.

If a TPS denial or withdrawal results in an individual having no other lawful immigration status, the new NTA policy may apply.

The new policy also does not apply to cases regarding an initial, renewed, or terminated DACA status.

Related Links: