Notice to Appear Policy Memorandum (original) (raw)

ALERT: On Jan. 20, 2021, Acting Secretary of Homeland Security David Pekoske issued a memorandum for the Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (PDF).

On Jan. 20, 2021, Acting Secretary of Homeland Security David Pekoske issued a memorandum for the Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (PDF). This memo rescinded the following 2018 Notice to Appear (NTA) Policy Memoranda:

• PM-602-0050.1 Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens; and
• PM-602-0161 Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) When Processing a Case Involving Information Submitted by a Deferred Action for Childhood Arrivals (DACA) Requestor in Connection with a DACA Request or a DACA-Related Benefit Request (Past or Pending) or Pursuing Termination of DACA.

Consistent with the DHS memo, USCIS stopped applying the 2018 Policy Memoranda on Jan. 20, 2021. USCIS will be issuing guidance with additional details and information.

Notice to Appear (NTA) policy memorandum (PM) providing guidance on when USCIS may issue Form I-862, Notice to Appear.

An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings against them.

Starting Oct. 1, 2018, USCIS may issue NTAs on denied status-impacting applications, including, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.

Starting Nov. 19, 2018, USCIS may also issue NTAs based on denials of 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.

USCIS will not implement the June 28, 2018, NTA Policy Memo with respect to employment-based petitions at this time. Existing guidance for these case types will remain in effect.

USCIS will send denial letters for status-impacting applications, petitions, and benefit requests that ensure benefit seekers are provided adequate notice when their request for a benefit is denied. If applicants, beneficiaries, or self-petitioners are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how individuals can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.

If individuals are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will continue to send denial letters for these benefit requests to ensure adequate notice regarding period of authorized stay, checking travel compliance, or validating departure from the United States.

We will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns and will continue to use our discretion in issuing NTAs on these case types.

USCIS held a public teleconference on Thursday, Sept. 27, and provided an overview of the PM and responded to pre-submitted questions. The questions and answers, and the overview from the teleconference, are available on the USCIS Teleconference Notice to Appear (NTA) Update Policy Guidance script posted to the Electronic Reading Room.

USCIS held a public teleconference on Thursday, Nov. 15, and provide an overview of the newly affected categories and respond to pre-submitted questions. The remarks from the teleconference, as well as the questions and answers, are available in the Electronic Reading Room.

Background

The updated policy affects the following categories of cases where the individual is removable:

• Cases where fraud or misrepresentation is substantiated, and/or cases where there is evidence the individual abused any program related to receiving public benefits. USCIS will issue an NTA in these cases, even if the case is denied for reasons other than fraud.
• Criminal cases where an individual is charged with (or convicted of) a criminal offense, or 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 will, where circumstances warrant, refer cases to ICE without issuing an NTA or adjudicating an immigration benefits.
• Cases where USCIS denied a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases where an individual will be unlawfully present in the United States when USCIS denies the petition or application.

The PM did not change USCIS policy for the following categories:

• Cases involving national security concerns;
• Cases where issuing an NTA is required by statute or regulation;
• Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
• Cases involving deferred action for childhood arrivals (DACA) recipients and requestors when (1) processing an initial or renewal DACA request or DACA-related benefit request or (2) processing a DACA recipient for possible termination of DACA; and
• SIJ applicants between the ages of 18 and 20 who submitted court orders issued pursuant to Section 1510.1(a) of the California probate code and were subsequently denied because the court lacked competent jurisdiction over their care and custody due their age.