USCIS published new guidance regarding the issuance of Notices to Appear (NTAs). NTAs are issued to a noncitizen whom the federal government believes to be removable from the United States.
The NTA sets forth the charges and initiates removal proceedings and is the notice to appear before an immigration judge (IJ) who will determine whether the person should be removed or whether the person is entitled to some form of relief from removal which would allow them to remain in the United States.

The new USCIS guidance vastly increases the categories of individuals to whom USCIS will issue an NTA and significantly alters DHS policy as to when an NTA will be issued. It effectively mandates USCIS to issue an NTA when an application or petition for an immigration benefit is denied and the applicant or beneficiary is deemed removable and where there is evidence of fraud, misrepresentation, or “abuse of public benefits programs.” An NTA will also be issued in cases involving criminal conduct, even if there is no conviction. Applicants for naturalization, whose N-400 is denied for lack of good moral character due to a criminal offense will also be subject to an NTA. Perhaps most significantly, NTAs will be issued in cases where the applicant, beneficiary, or requestor is “not lawfully present” in the United States at the time an application, petition, or request for an immigration benefit is denied. This has the potential to impact thousands of foreign nationals, including employment-based nonimmigrant workers and green card applicants, family-based immigrants, naturalization applicants, and temporary visitors to the United States, among many others.

The problem is that once removal proceedings are initiated and the foreign national departs the US while proceedings are pending, there is a five-year bar to reentering the US. Remaining in the United States for too long, while waiting for an immigration court date or obtaining voluntary departure, may also not be ideal. For one, there is no work authorization for many foreign nationals who are in removal proceedings and consequently, employment-based clients may potentially be locked in the US without the ability to work or travel internationally, potentially for several months, if not years as courts a greatly backed up.

It is also unknown at this time whether employment-based applicants who are issued an NTA, and who have no criminal or fraud history, will be placed in detention and required to request a bond in order to be released from ICE custody while they await a hearing.

USCIS has to now update their operational guidance and the implementation of this policy memo is postponed until the operational guidance is issued.

We will keep you updated of any developments and welcome your inquiry if this new guidance may affect you.