U.S. Citizenship and Immigration Services (USCIS) issued new policy guidance that instructs USCIS officers to issue a Notice to Appear (NTA) for a much wider range of cases. An NTA is a charging document given to a foreign national that begins removal proceedings and instructs the individual to appear before an immigration judge. Although USCIS has the legal authority under current immigration laws to issue NTAs, the agency’s main focus has been to adjudicate immigration benefits. Previously, the USCIS would only issue NTAs under limited circumstances. The Department of Homeland Security (DHS) instead relied upon enforcement agencies such as U.S. Immigration and Customs Enforcement (ICE) to handle NTAs.

The new policy now places more of this responsibility on USCIS and instructs officers to issue an NTA upon denial of an immigration benefit request where the individual is removable. The revised policy generally requires USCIS to issue an NTA in the following types of cases:

• 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.

The most notable change involves cases where an individual is unlawfully present in the U.S. after an application or petition is denied. For employment based immigration cases, this will have a big impact on those individuals who request a change of status or extension of status and subsequently receive a denial after their I-94 has expired. These individuals will likely be issued an NTA and be required to appear before an immigration judge. This stands even if the individual intends to depart the U.S. voluntarily and immediately. The new policy will most certainly put more strain on our immigration court system, which currently has a backlog of over 700,000 cases.

We hope to know more soon regarding the consequences of the updated guidance and will share those details when available.

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