USCIS Implements Second Phase of Broadened Notice to Appear Policy

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At a glance

• Starting November 19, USCIS may initiate removal proceedings against beneficiaries of certain humanitarian petitions and applications whose cases are denied, including asylee/refugee relatives, Special Immigrant Juveniles, battered spouses, and U and T nonimmigrants.
• Application of the Notice To Appear policy to denied employment-based filings remains on hold for now.

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A closer look

U.S. Citizenship and Immigration Services (USCIS) will soon apply its new Notice to Appear (NTA) policy against certain foreign nationals whose humanitarian petitions or associated adjustment applications are denied. The NTA policy remains on hold with respect to employment-based petitions.

Beginning November 19, USCIS may initiate removal proceedings when the following petition types, or associated applications for adjustment of status, are denied, and the foreign national is out of status and does not timely depart the United States:

• Forms I-914/I-914A, Applications for T Nonimmigrant Status;
• Forms I-918/I-918A, Petitions for U Nonimmigrant Status;
• Form 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; and
• Form I-730, Refugee/Asylee Relative Petition, when the beneficiary is present in the U.S.​

Continued phase-in of the NTA policy

USCIS first announced its NTA policy in July of this year, but deferred implementation while it developed internal guidance. As of October 1, USCIS began to initiate removal proceedings against adjustment of status applicants without underlying nonimmigrant status if their applications were denied and they did not depart the United States promptly. Applicants for certain changes or extensions of nonimmigrant status also became subject to the policy on that date. USCIS’s announcement that the NTA policy will now impact certain humanitarian applications for immigration benefits marks the second phase of the policy’s implementation.  USCIS has given no indication as to when it might begin to apply the policy to employment-based immigration filings.

Under the new policy, a foreign national whose affected immigration application/petition is denied and who has no underlying immigration status would receive a notice to depart the United States. Those who do not depart within the required timeframe – typically 33 or 18 days, depending on the nature of the denial – 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.