In June of this year, the USCIS issued a new policy memorandum with updated guidelines regarding when the USCIS should issue a Notice to Appear, or NTA, which instructs an individual to appear in court before an immigration judge. A NTA provides information about when and where the individual should appear and initiates removal proceedings against a noncitizen. Prior to this June 2018 memo, there were only a handful of situations in which the USCIS was instructed to issue a NTA. Instead, the enforcement branches of the Department of Homeland Security (such as ICE) usually issued NTAs. However, the June 2018 memo supersedes a previous 2011 memo and greatly increases the number of situations that require or permit the USCIS to issue an NTA.


Specifically, the new June 2018 memo states that the USCIS will issue a NTA if they deny a case for an individual who is not lawfully present in the United States. Previously, the USCIS had the discretion to issue a NTA, and generally only did so in cases involving fraud, crimes, or national security. However, under the new June 2018 memo, the USCIS is explicitly directed to issue a NTA if the beneficiary of the petition is out of status at the time the petition is denied.


Earlier this week, the USCIS provided some clarification about when and how this policy is being implemented. They announced their commitment to implementing the new policy and stated that it will go into effect on October 1, 2018. While the USCIS is still committed to moving forward with the new policy, they have clarified their intent to implement the new policy only gradually. In particular, they are not enforcing this policy with respect to employment-based petitions and humanitarian applications at this time, stating they plan to follow existing guidance with regard to these petition types for the time being.