On June 28, 2018, USCIS announced its new policy on the issuance of Notice
to Appear (NTA) through the memorandum titled “Updated Guidance for the
Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases
Involving Inadmissible and Deportable Aliens.”
An NTA is issued to a noncitizen whom the federal government believes to be
removable from the US. The NTA sets forth the charge(s) against the alien
and the statutory provisions alleged to have been violated. Thus, the NTA is
a charging document that initiates removal proceedings against noncitizen
respondents, requiring them to appear before an immigration judge who will
determine whether they should be removed from the U.S., or whether they are
eligible for relief allowing them to remain in the US or voluntarily depart
without an order of removal.
The new policy guidance requires USCIS to issue NTAs in far more cases than
ever before. Of particular concern, the guidance calls for the issuance of
an NTA if an applicant or beneficiary is unlawfully present at the time an
application or petition is denied. Unlawful presence is defined by reference
to an individual who is present in the US after expiration of the period of
stay authorized by the Attorney General or is present in the US without
being admitted or paroled.
Once an NTA is issued, ignoring it and simply departing the US is not an
option. A person who receives an NTA (whether issued to the individual or
his or her attorney of record) and who fails to attend a proceeding shall be
ordered removed in absentia if the government establishes by clear,
unequivocal, and convincing evidence that the written notice was provided
and that the alien is removable. A person who without reasonable cause fails
to appear for removal proceedings is barred from readmission to the US for
five years.
On the other hand, remaining in the U.S. to appear in immigrant court
results in the accrual of unlawful presence. A person who has been
unlawfully present for more than 180 days but less than one year and who
departs the US is barred from returning for three years (known as the three-
year bar). A person who departs after having been unlawfully present for
more than one year is barred for ten years (known as the ten-year bar). The
accrual of unlawful presence is not tolled by the initiation of removal
proceedings. Therefore, an individual who might not be subject to the three
or ten-year bar at the time an immigration benefit is denied, may become
subject to the bar while he or she awaits an initial court date. Although
Department of Homeland Security has the authority to grant pre-hearing
voluntary departure for a period of up to 120 days, the new NTA guidance
makes no mention of voluntary departure as an option in lieu of being
subjected to removal proceedings.
At this point, it is difficult to predict the number of individuals who will
be placed in removal proceedings as a result of the new NTA policy,
particularly due to the lack of lawful presence at the time an immigrant
benefit is denied. In light of this policy guidance, we submit that the
following preemptive actions are worth consideration:
1) Premium processing: use premium processing to get the result of the
petition prior to the expiration of your current status;
2) Apply for visa abroad: instead of changing or extending status in the
US, consider applying for visa abroad;
3) In H1B transfer cases, do not start working for the new employer prior
to the approval of the petition, and use premium processing service for the
petition;
4) Maintain non-immigrant status (such as H1B or O1) while I-485 is
pending;
5) Be cautious in filing application to extend B2 status (e.g. for
parents visiting the US). Such application can take a long time to process
and the visitor’s status will most likely have expired by the time the
extension application is adjudicated.
We have been studying the new NTA policy guidance and will continue to keep
track of its development and actual implementation, and will report back if
and when there is any update.
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