By: Angelita Chavez-Halaka and Omar Nazarkhan

On July 5, 2018, United States Citizenship and Immigration Services (USCIS) announced new policy guidance marking a change in the way in which Notices to Appear, also known as NTAs, are issued. This change diverts from normal practice in past years, and will afford USCIS expanded ability to issue NTAs to foreign nationals based on a denial of an application for immigration benefits.

What is an NTA?

A Notice to Appear is a formal charging document issued by the Department of Homeland Security (DHS) which places foreign nationals in removal proceedings.

Once issued, recipients of an NTA must appear in front of an immigration judge, who will decide whether the charged foreign national will be removed from the United States or allowed to stay if eligible for some other form of relief.

It is important to note that failure to appear in immigration court will result in an in-absentia order of removal against the foreign national. These types of removals bar re-entry into the U.S. for 5 years. This record will, in turn, affect a foreign national’s attempt to qualify for future immigration benefits.

The New Policy

Under the new policy, USCIS will now be able to issue NTAs upon the denial of an application for immigration benefits. The language in the new Policy Memorandum is extremely broad and indicates that USCIS can issue NTAs to any person that is not lawfully present at the time that the immigration benefit is denied.

USCIS issued a separate DACA NTA Policy Memo specifically indicating that the previous information sharing policy on DACA is still in place.

Who is Impacted?

As detailed on AILA’s “Talking Points” regarding this new policy guidance on NTAs, USCIS is now mandated to issue NTAs to “every person who is ‘not lawfully present’ in the United States at the time an application, petition, or request for an immigration benefit is denied.”

For example, a foreign national with long term H-1B status is subject to receive an NTA and be removed from the United States, if his/her pending application to extend H-1B status is denied and his/her current status has expired.

Similarly, an executive or multinational manager in L-1A status who is seeking permanent residency will also be issued an NTA, if his/her L-1A status expires and the adjustment of status application is denied.

It is imperative to understand that these examples are not exhaustive. Every case is different, and the impact of this new guidance is extensive.

What Can Employers and Employees Do?

This new policy has the potential for far reaching immigration consequences for anyone who is denied an immigration benefit before USCIS after the expiration of lawful status. Employers and employees should:

• Be vigilant about expiration dates on current status
• File for extensions 6 months prior to expiration
• Consider using premium processing service
• Consular process when appropriate, and
• Consult with your Immigration Practitioner to address any questions or concerns you should have

As always, we will continue to monitor and provide updates on this policy change.

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