The NTA Memo to Take Effect on October 1, But Only for I-485 and I-539 Denials
Earlier, USCIS had published updated guidance regarding the situations in which USCIS may issue a Notice to Appear (NTA) which is said to be effective from June 28, 2018. An NTA says that one must appear before an immigration judge for deportation proceedings. In the past, USCIS guidance which was issued in 2011 has limited employment-based immigration involving national security concerns, denial of refugee or asylum, fraud, public safety, and such.
Now, President Trump’s executive order on increasing public safety inside the United States leads to this new guidance. The memorandum requires USCIS to issue an NTA “where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” After the foreign worker’s I-94 has expired, in employment-based cases, this arises often if a pending application for change of status or extension of status is denied completely.
After a month, USCIS announced that it was postponing implementation of the published Policy Memorandum regarding USCIS’ authority to issue NTA. Initially, when the Policy Memorandum was issued, each USCIS Service Center had given 30 days time to develop processes and procedures for NTA issuance, though the guidance itself took effect immediately.
But till July 30, 2018, the operational guidance for implementation of the NTA policy was not completed. So USCIS decided to postpone implementation of the NTA memo until the operational guidance is issued. Today, USCIS has announced that the NTA memo will be implemented from October 1, 2018, but this is only for denials of I-485s and I-539s where the individual’s I-94 has expired at the time of denial.
The announcement describes that employment-based petitions will not be subjected to the new NTA policy for now. USCIS is implementing the NTA memo incrementally, so the other types of applications and petitions can be added in future. This will affect any I-485 or I-539 denial issued after October 1st regardless of the time the application was filed.
USCIS waits until the expiration of the appeal/motion period, generally 33 days from the date of the decision, see updated Q&A from USCIS below.
From October 1st, USCIS will add language in denial letters by giving the notice of unlawful presence and some kind of explanation. If the individual is not in a period of authorized stay and has not departed the United States by the end of the appeal period, USCIS will then issue an NTA.
An NTA should not be issued until the final decision of the appeal/motion, if an appeal or motion to reopen is filed. If the appeal/motion is favorable, USCIS will work with ICE to make sure the favorable decision is upheld.
In the today’s teleconference, the topic regarding NTAs issuance for I-539 denials involving E, H-4, L-2, O-3, or TD applicants was not addressed. As they did not specifically exclude this subset of I-539s, the intention may be the NTA will apply to all the I-539 denials, even for the spouses of employment-based petitions. So, if an I-129 and I-539 are filed together to extend H-1B and H-4 status, but the I-129 is
denied after the I-94s have expired, the I-539 will also be denied and only the H-4 will be subjected to an NTA if he/she does not depart within the time of denial.