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Beginning October 1, 2018, U.S. Citizenship and Immigration
Service (USCIS) will begin a staggered rollout of a new notice to
appear (NTA) policy. The first phase of the rollout does
not include employment-based petitions.
The NTA policy authorizes immigration officers to issue NTAs and
thus initiate the first step in removal (deportation) proceedings
for those deemed to be removable from the United States after the
denial of an immigration benefit. USCIS deployed the NTA policy in
July 2018 but then later put it on hold while it developed
additional guidance for the policy's application.
In a recent announcement and during a September 27, 2018,
stakeholder teleconference, USCIS offered additional details about
the policy's implementation and highlighted the following
information:
The initial focus is on applications
(as opposed to petitions) and the policy affects adjustments of
status (Form I-485), applications for naturalization (Form N-400),
and applications to extend or change nonimmigrant status (Form
I-539), among others.
Employment-based petitions (including
those based on Forms I-129 and I-140) are not included in the
initial rollout, nor are humanitarian applications and
petitions.
Generally speaking, USCIS will not
immediately issue an NTA upon the denial of an immigration benefit.
It will wait for the expiration of the motion or appeal period
before issuing an NTA—though it is worth noting that USCIS
reserves the right to issue an NTA at any point during the
adjudication period, where appropriate.
The NTA policy does not affect
motions to reconsider or reopen, or appeals. If USCIS ultimately
approves an application after an NTA has been issued, it will
coordinate with U.S. Immigration and Customs Enforcement (ICE) to
make sure that ICE is aware of the favorable outcome. USCIS cannot
cancel or withdraw an NTA that it has issued.
The NTA policy does not include
initial requests for deferred action for arrivals (DACA), renewals,
or requests for DACA-related benefits.
USCIS may, in its discretion, issue
an NTA at the request of a removable foreign national so that he or
she may seek lawful status or other relief during removal
proceedings.
As USCIS begins implementing the NTA
policy, it will create a public-facing web page that will provide
additional guidance on the policy and examples of scenarios that
may trigger the issuance of NTAs.
USCIS has not provided a timeline for any additional
implementation measures.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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