On November 15, 2018, USCIS conducted its second stakeholder call addressing the incremental implementation of the June 28, 2018 USCIS Policy Memo on Notice to Appear Issuance (NTA PM). The call was scheduled one week following the November 8 announcement by USCIS that, as of November 19, the NTA PM will be applied to denials of applications for T status (Form I-914); U status (Form 918); Violence Against Women and Special Immigrant Juvenile Status self-petitions (Form I-360); refugee/asylee family petitions; and petitions for qualifying family members of a U-1 nonimmigrant (Form I-929) where the applicant, beneficiary or self-petitioner is not lawfully in the United States. In addition to these forms, denials of “status-impacting” applications, including but not limited to Forms I-485 and I-539, have been subject to the NTA PM since October 1.

In the one-hour stakeholder call, USCIS responded to pre-submitted questions primarily relating to the application of the NTA PM to the humanitarian benefit categories described above. USCIS is expected to post the Questions and Answers from the call on the USCIS website, but no date was specified as to when this information will be available. As an interim measure, we have listed below some important points covered by USCIS in the call.

1. On October 1, 2018, USCIS began the first stage of implementation of the NTA Policy guidance with respect to denied “status-impacting” cases including but not limited to Form I-485 and Form I-539. As of November 19, 2018, USCIS will continue implementation of the NTA policy memorandum to include denied forms I-914, I-914A, I-918, I-918A, I-929, I-360 (VAWA and SIJS), I-730 where the beneficiary is present in the U.S, and I-485s associated with these underlying forms where the applicant, beneficiary or petitioner is no longer in status at the time of denial.
2. USCIS will generally not issue an NTA at the time of denial although it has discretion to do so. Denial decisions issued by USCIS will notify the applicant, petitioner or beneficiary that she or he is subject to NTA issuance if no longer in status unless (a) a motion or appeal is timely filed or (b) the applicant, petitioner or beneficiary departs the U.S. within 33 days of the denial notice. USCIS will generally not issue an NTA while an appeal or motion is pending.
3. The NTA PM will be applied to decisions made on or after implementation for each group of case types as they are announced without regard to the application filing date. This means, for example, that a U status application denied on or after November 19 is subject to the NTA PM. In addition, USCIS may exercise discretion to apply the NTA PM to cases denied prior to June 28, 2018, if the case is under review.
4.  All USCIS adjudicators are receiving training on the new NTA PM and its implementation, including specific issues related to confidentiality protections under 8 USC 1367.
5. Generally, USCIS will not issue a new NTA if the person has an unexecuted order of removal or active warrant of deportation. If there is evidence of a prior unexecuted order in the immigration record, USCIS may refer cases to ICE ERO to determine if execution or reinstatement of prior removal order is appropriate.
6. USCIS will continue to refer certain criminal cases to ICE for possible NTA issuance. In these cases, whether the underlying benefit is humanitarian or not is generally not a factor.
7. There are no categories of noncitizens who are exempt from enforcement. Prosecutorial discretion is exercised on a case-by-case basis; for this reason, there is no list of factors to be used by adjudicators in making a recommendation for prosecutorial discretion.

CLINIC will provide ongoing updates and practice advisals on NTA implementation as new information becomes available. Many issues about implementation of the NTA PM remain unclear, including how the guidance applies when an individual with lawful presence, like DACA or U status, is denied an unrelated benefit. We invite CLINIC affiliates with questions about the NTA PM to contact CLINIC’s Training and Legal Support section to request technical assistance.