A More In-Depth Look at USCIS's New NTA Policy Memorandum
An incremental approach to this PM went into effect beginning October 1st, 2018. We will now go into further detail regarding some of the specifics of USCIS's implementation of the policy, as detailed in a September 27th teleconference on the subject.
The Cases Affected
The June 28 PM will feature policy updates concerning the issuance of NTAs in the below case types involving deportability. It is important to remember it is not necessary for the case to have been specifically denied for the following categories of conditions in question for an NTA to be issued:
• Cases where fraud or misrepresentation is substantiated, or there is evidence that the individual abused any program concerning public benefits.
• Criminal cases where the individual is convicted of or simply charged with a criminal offense, or has committed acts that are chargeable as a criminal offense. USCIS will in some circumstances refer cases to ICE before adjudicating a pending immigration benefits request pending before without issuing an NTA.
• Certain N-400 (naturalization)
• Cases in which the individual will be unlawfully present in the U.S. upon denial of the request.
USCIS may also issue NTAs on denied status-impacting applications, which may among others include Form I-485, Application to Register Permanent Residence or Adjust Status and Form I-539, Application to Extend/Change Nonimmigrant Status.
Other case categories will not be affected by the newly implemented PM, including:
• Cases involving concerns of national security.
• Cases where NTA issuance is required by statute or regulation.
• Cases involving Temporary Protected Status (TPS), with the exception being situations in which, after the application of TPS regulatory provisions, a TPS denial or withdrawal results in the possession of no alternatively lawful immigration status.
• Cases involving DACA recipients and requestors, including when processing an initial or renewal DACA request or DACA-related benefit request, or when processing a DACA recipient for possible termination of DACA.
Moreover, and contrary to some of the above information in this nascent stage of the NTA PM's implementation, the following case types will also for the time being not be impacted:
• Cases with evidence of abuse of public benefits.
• Cases involving fraud.
• I-140 petitions.
• I-129 petitions.
• Provisional waivers.
Furthermore, for cases that are implicated in this new PM, the time in which a petition or application is filed is irrelevant as upon implementation the policy will affect all denials issued following the commencement date of October 1st.
Situations to Consider in Light of the New NTA Policy
IF, AFTER RECEIVING A DENIAL, AN APPLICANT WISHES TO DEPART THE U.S. BEFORE APPEARING BEFORE AN IMMIGRATION JUDGE, CAN AN NTA BE CANCELLED IF HIS OR HER CASE IS REOPENED AND APPROVED?
An NTA cannot be cancelled once USCIS has filed it with the Executive Office for Immigration Review (EOIR), however USCIS will coordinate with ICE, which will then determine the motion to terminate removal proceedings.
IF A REMOVABLE INDIVIDUAL WITHDRAWS HIS OR HER APPLICATION, WILL USCIS STILL ISSUE AN NTA?
USCIS may still do so, as its authority to pursue such enforcement actions isn't hindered in such a scenario.
DO NEGATIVE FACTORS SUCH AS FRAUD OR CRIMINALITY HAVE TO BE PRESENT FOR USCIS TO ISSUE AN NTA UPON DENYING A BENEFIT?
No, all that is necessary for the issuance of an NTA is that the applicant is removable, though the above referenced cases are indeed prioritized.
IS USCIS'S OPERATIONAL GUIDANCE REGARDING THE PM'S IMPLEMENTATION AVAILABLE?
No operational guidance is available to the public. Updates will instead be issued regarding the NTA PM's incremental implementation through a public-facing webpage hosted on USCIS's website. USCIS also plans to host future public engagements as the PM's implementation progresses.
IN CASES INVOLVING THE TIMELY AND NON-FRIVOLOUS FILING OF EXTENSION OR CHANGE OF STATUS PETITIONS, CAN A 10 TO 14 DAY GRACE PERIOD BE GRANTED IN ALLOWING AN INDIVIDUAL TO DEPART THE U.S. BEFORE AN NTA IS ISSUED?
Language will be added to many denial letters in order to help ensure that sufficient notice is provided, allowing an applicant to depart before an NTA is issued. USCIS has stated that it will generally abstain from issuing an NTA immediately upon denying a benefits request and will wait for the expiration of the period for which one may file an appeal or motion. In its denials USCIS will also provide details on how to review information regarding the period of authorized stay, check travel compliance, or validate departure.
WILL THERE BE EXCEPTIONS IN CASES IN WHICH INDIVIDUALS ARE PHYSICALLY UNABLE TO DEPART?
If the adjudicator believes such an exercise of prosecutorial discretion is justified, a recommendation may be submitted to the Prosecutorial Review Panel where the use of this discretion will be determined in light of the individual facts of the case.
WILL NTAS BE ISSUED IN CIRCUMSTANCES IN WHICH ONE REQUEST HAS BEEN REFUSED BUT THE APPLICANT HAS OTHER GOOD FAITH APPLICATIONS OR PETITIONS STILL PENDING?
It will generally be ensured that all requests that impact authorized stay or status are adjudicated prior to the issuance of an NTA, but one may still be issued in specific circumstances as deemed appropriate...
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