New NTA Policy Becomes Effective October 1, 2018

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On June 28, 2018, U.S. Citizenship and Immigration Services released a policy memorandum that effectively transforms the current “services” division of Homeland Security into an enforcement agency. The new policy, which goes into effect next Monday, is to issue a Notice to Appear, or NTA, to start the deportation process against persons suspected or alleged to have committed a misrepresentation or crime or whose immigration status will lapse when USCIS denies a petition or application the person submitted. The new policy targets individuals applying for green cards or for a change or extension of nonimmigrant (temporary) status.

In a September 26, 2018 press release, USCIS confirmed that the new NTA policy will not apply to employment-based petitions, such as when an employer requests an extension of an H-1B worker’s status and work authorization.

The cases the NTA policy targets fall into four categories:

  1. Substantiated fraud or misrepresentation in an immigration petition or application, or abuse of a program to receive public benefits;
  2. Criminal charge or conviction;
  3. Denial of application for citizenship related to a criminal offense that prevents showing good moral character; and
  4. Situation where one will become “unlawfully present” (i.e. without lawful status) when USCIS denies a petition or an application.

The NTA policy will follow a typical, slippery-slope sequence of events. In most cases, an individual applies to USCIS for an immigration benefit, such as a green card, change or extension of temporary status, or citizenship. When USCIS reviews the petition or application, it conducts criminal and immigration status background checks. If the reviewing officer discovers one of the items noted above, an NTA will be sent to request that the person appear before an immigration judge for deportation proceedings.

In an attempt to explain the new NTA policy, USCIS hosted a September 27 national phone conference, which involved various representatives of USCIS reading prepared statements and questions and answers in a monotone, robotic fashion. The call was short on specific examples and meaningful guidance and long on regurgitations of press releases and references to statutory and regulatory provisions. All in all, it was a waste of 60 minutes that added nothing to the substance of the NTA policy and merely confirmed the current administration’s anti-immigration agenda.

The takeaway from this new NTA policy memo is, although the memo appears directed at limited situations, the policy and press release specifically reference USCIS’ unfettered discretion to issue NTAs as it deems appropriate. In other words, this is the administration’s latest misdirection and smokescreen strategy to create confusion and anxiety among vulnerable populations. The cautious approach for immigrants therefore will be to seek legal counsel to determine how a criminal charge or conviction could affect his or her immigration status. Further, it would be wise to consult qualified immigration counsel before seeking an immigration benefit, such as applying for a green card or citizenship, to review criminal or immigration violation issues and make sure those issues won’t lead to an NTA and deportation proceedings.