United States: Top 10 NTA Takeaways: USCIS Goes Live To Reveal Implementation Plans Of New DHS Deportation Policy

Last Updated: October 2 2018
Article by Lisa J. Pino

On September 27, USCIS provided live feedback about the agency's implementation plans for a new Notice to Appear policy, which will significantly expand deportation categories. The policy change also places USCIS, the administrative immigration arm of DHS, in the role of enforcer, a function that ICE normally supports.

On September 27, the USCIS Office of Public Engagement hosted a live teleconference to inform the public how the agency will implement its new policy, or policy memorandum (PM), issued on June 28, 2018, "Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens."  The policy aligns USCIS operations with Executive Order 13768: Enhancing Public Safety in the Interior of the United States.

The NTA requires the recipient to appear in court before an immigration judge, and is the first step in removal, or deportation, proceedings. After a brief overview of the new NTA policy, which supersedes previous 2011 USCIS guidance on the same topic, USCIS presented a Q&A series from more than 100 questions received by stakeholders. The USCIS teleconference participants represented a broad spectrum of the agency's divisions including USCIS Field Operations, Policy, and Office of Chief Counsel.  USCIS also announced that the agency will soon host a public webpage about the new NTA policy implementation, and that information conveyed during the teleconference would soon be available in the USCIS electronic reading room.

The top 10 takeaways of the USCIS teleconference regarding its new NTA policy implementation include the following points:

1) USCIS will apply the policy in cases of fraud or willful misrepresentation, the abuse of the receipt of public benefits, criminal offenses, and unlawful presence, among other categories.

2) "At this time," USCIS will not apply the policy in cases of employment-based petitions, such as I-140 and I-129 petitions. Thus, employment-based petitions are excluded from the policy, however this does not preclude the agency from later expanding the new NTA policy to include employment-based petitions.

3) USCIS will not apply the policy in cases of Deferred Action Childhood Arrivals (DACA) recipients or requestors, Temporary Protected Status, or humanitarian cases.

4) USCIS will implement the new policy beginning on October 1, 2018, in cases where the agency denies status-impacting applications such as Form I-485 (Adjustment of Status) or Form I-539 (Extend/Change Non-Immigrant Status) applications.

5) USCIS will implement the policy in an "incremental" fashion. Although USCIS did not specific a timeframe, "incremental" implies that there will be a period of gradual increase in the number and frequency of NTAs issued as the agency hones its coordination and logistics in the rollout of its new NTA implementation.

6) USCIS may still refer immigration cases to Immigration Customs Enforcement (ICE) without issuing a NTA. The new policy does not change how ICE will operate nor ICE's authority to operate.

7) USCIS will not issue an NTA immediately upon the denial of a benefit request, but will wait for the expiration of an appeal or motion period before issuing an NTA. This interim period is usually 33 days from the date of the decision, but may be less depending upon the case type, and could be as brief as 18 days.

8) USCIS will exercise prosecutorial discretion on a case-by-case basis, and will establish prosecutorial discretion panels in local (regional) USCIS offices, which will determine whether cases warrant prosecutorial discretion over a NTA.

9) USCIS will issue NTAs either by mail or in person by service of process, implying the importance of applicants to maintain accurate addresses on file with USCIS.

10) USCIS will soon host a public webpage intended to answer questions from the public, and is considering other public engagement support. Other questions may be sent to public.engagement@uscis.dhs.gov.

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