USCIS Expands Policy on Initiating Removal Proceedings

October 30, 2018

A June 28, 2018, USCIS policy memorandum (PM 602-0050.1) expands conditions under which USCIS issues a Notice to Appear (NTA), the document that begins removal (deportation) proceedings. The policy now includes situations "where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States."

Due to a legal necessity requiring that USCIS offices to develop or update operational guidance on NTAs and Referrals to ICE (RTIs), implementation of the guidance was postponed until Oct 1, 2018. As of October 1, 2018, USCIS is implenting a phased-in approach to the policy memo, starting with "denied status-impacting applications, including but not limited to" denied Forms I-485 adjustment of status applications and denied Forms I-539 (used for change of status, extension of stay, and F/M reinstatement). It is possible that denied Forms I-765 (OPT, OPT STEM) could also trigger the NTA policy, therefore, if after the denial the applicant is also out of status at that time. USCIS also clarified that the new NTA policy "will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect. USCIS will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns."

For more information see NAFSA's NTA policy page

USCIS will provide additional updates to the phased-in policy memo here: https://www.uscis.gov/legal-resources/notice-appear-policy-memorandum