Starting October 1, USCIS to Implement Notice to Appear Policy in Phases

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At a glance

• Beginning October 1, USCIS could initiate removal proceedings against adjustment of status applicants without underlying nonimmigrant status if their applications are denied and they do not depart the United States promptly.Applicants for certain changes or extensions of status are also subject to the policy.
• For now, USCIS does not plan to apply the new policy to employment-based petitions or humanitarian petitions or applications.

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The situation

Starting October 1, USCIS will begin a phased implementation of its June 28, 2018 Notice to Appear (NTA) Memorandum, which directs agency adjudicators to initiate removal proceedings against a broader group of foreign nationals. 

According to an agency announcement issued today, USCIS will apply the policy to Form I-485 permanent residence applicants and to Form I-539 applicants to extend or change nonimmigrant status.  Employment-based petitions – including H-1B, L-1, E and O petitions – are not subject to the enforcement policy at this time.  Humanitarian application and petitions are also exempted.

USCIS first announced the NTA policy in July of this year, but deferred implementation while it developed internal guidance.

What this means for foreign nationals

USCIS is soon expected to provide further information on how the NTA policy will be implemented.  It is anticipated that a foreign national whose I-485 or I-539 application is denied and who has no underlying valid immigration status would receive a notice to depart the United States.  Those who do not depart timely could be issued a Notice to Appear before an immigration judge, who would determine whether the foreign national should be removed from the United States or is entitled to legal relief that permits him or her to remain.  

Fragomen is closely monitoring implementation of the NTA policy and will provide further updates as new information becomes available.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.