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Notice to Appear Policy Guidance Updated by USCIS


U.S. Citizenship and Immigration Services recently issued an updated guidance that adjusts its policy for issuing Form I-862, Notice to Appear, to be in line with the immigration enforcement priorities of the Department of Homeland Security.

A Notice to Appear (NTA) is a document that is given to an alien, instructing them to appear before an immigration judge on a specific date. When an alien is issued an NTA, removal proceedings will commence against them. Under the new guidance, USCIS officers will now issue an NTA for a broader range of cases where the individual is removable and there is evidence of fraud and criminal activity. Situations where an applicant is denied an immigration benefit and is unlawfully present in the United States also fall under the new guidance.

According to USCIS Director L. Francis Cissna, “For too long, USCIS officers uncovering instances of fraudulent or criminal activity have been limited in their ability to help ensure U.S. immigration laws are faithfully executed. This updated policy equips USCIS officers with clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it.”

Under the new guidance, Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempt when:

  • They are processing an initial or renewal DACA request or request related to DACA benefits.
  • A DACA recipient is being processed for possible termination of DACA. According to the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information that has been provided by a DACA requestor in a DACA request or DACA-related benefit request.

Current immigration laws give USCIS, U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP), legal authority to issue NTAs. This Policy Memorandum provides updates to the guidelines USCIS officers will use to determine when a case should be referred to ICE or when to issue an NTA.

In general, the revised policy requires USCIS to issue an NTA in the following categories of cases where individuals qualify for removable:

  • Cases in which fraud or misrepresentation has been substantiated, and/or where an applicant has abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case has been denied for reasons other than fraud.
  • Criminal cases involving an applicant who has been convicted of or charged with a criminal offense, or has committed acts that can be charged as a criminal offense, even if the criminal conduct was not the reason for the denial or the grounds for their removal. USCIS can also refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request that is pending before USCIS, without issuing an NTA.
  • Cases where USCIS has denied a Form N-400, Application for Naturalization, due to an applicant’s lack of good moral character stemming from a criminal offense.
  • Cases in which an application or petition has been denied, making the applicant unlawfully present in the United States.

The revised policy does not make any changes to USCIS’ policy for issuing an NTA in the following categories:

  • Cases that concern national security.
  • Cases in which statutes or regulations require an NTA to be issued.
  • Temporary Protected Status (TPS) cases, except those where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in a person having no other lawful immigration status.
  • DACA recipients and requestors when processing an initial or renewal DACA request or DACA benefit request, or a DACA recipient who is being processed for possible termination of DACA.

Under a separate policy guidance that was issued concurrently, USCIS officers will continue to apply PM 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, from the date of November 7, 2011, to the issuance of NTAs and Referrals to ICE for DACA recipients and requestors.

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