USCIS Implements Second Phase of “Notice to Appear” Policy Memo

On 11/8/2018, the U.S. Citizenship and Immigration Services (USCIS) announced that employment-based petitions (such as H-1B, L-1, E and O petitions) will not be subject to the June 2018 Notice to Appear (NTA) policy memo at this time. Existing guidance for these case types will also remain in effect.

As precautionary measures, employers and their foreign national employees are encouraged to get their documents ready for filing work visa petitions as early as legally permissible; and premium processing is recommended when the case type in question allows for it. If these measures are taken, the foreign national of a work visa petition when denied, would still be in valid status and have sufficient time to prepare for the next steps.

An NTA is a charging document that instructs a foreign national to appear before an immigration judge. This is the first step in starting removal/deportation proceedings.

In June 2018, USCIS issued the NTA policy memo, providing updated guidance for the federal agency to issue NTAs on its own initiative in cases involving inadmissible and removable foreign nationals; and refer cases involving potentially removable foreign nationals to the U.S. Immigration and Customs Enforcement (ICE) to decide whether removal proceedings should be initiated by issuing an NTA. Per USCIS, this updated guidance is to better align with the Trump administration’s enforcement priorities to promote America’s “national security, public safety, and the integrity of the immigration system.”

The business immigration community was alarmed by the implications of the NTA policy memo when the memo was first released. Under this policy, foreign nationals may be issued NTAs and placed in removal proceedings upon denial of the work visa petition filed for them, assuming they are no longer in valid status or a period of authorized stay. In light of the more difficult and unpredictable USCIS adjudication trend that we are experiencing today, the potential application of the NTA would undoubtedly wreak havoc on foreign nationals’ ability to maintain their lawful stay/work authorization in the U.S.

USCIS will carry out the NTA policy memo in phases. For the first phase, starting 10/1/2018, USCIS may issue NTAs on denied applications including:

• Form I-485, Application to Register Permanent Residence or Adjust Status; and

• Form I-539, Application to Extend/Change Nonimmigrant Status.

For the second phase, starting 11/19/2018, USCIS may issue NTAs on the following denied petitions/applications:

• Forms I-914/I-914A, Applications for T Nonimmigrant Status;

• I-918/I-918 Petitions for U Nonimmigrant Status;

• I-360 Petition for Amerasian, Widow(er), or Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile petitions);

• Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant;

• I-730 Refugee/Asylee Relative Petitions; and

• I-485 Applications to Register Permanent Residence or Adjustment of Status with these underlying form types.

For now, foreign nationals of employment-based petitions can breathe a sigh of relief since the NTA policy memo does not apply to their case types. But attention should be given to future phases of the policy as USCIS’s enforcement of the NTA may expand to employment-based petitions.

Disclaimer: No attorney-client relationship is created by the use of this article. This article is for informational purposes only, and shall not be taken as legal advice on any particular set of facts or circumstances. Please seek the advice of a competent attorney to assist with your specific immigration questions. Any reference to prior results does not guarantee or imply similar/same future outcomes. This article may provide links to third-party websites; and I assume no responsibility for the accuracy of the contents of such websites. Any views expressed in this article are not the views of my employer.