USCIS Issues Policy Guidance on Notices to Appear


U.S. Citizenship and Immigration Services ("USCIS") recently updated its policy for issuing Form I-862, Notice to Appear ("NTA"), to clarify when USCIS should issue an NTA instead of referring the case to Immigration and Customs Enforcement ("ICE").

A Notice to Appear (NTA) is a document that requires foreign nationals to appear before an immigration judge on a specific date, beginning removal proceedings. Under the new guidance, USCIS will now issue NTAs for a broader range of cases where the individual is removable. The revised policy requires USCIS to issue an NTA and begin deportation proceedings in the following categories of cases where individuals qualify as removable:

• Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue a NTA even if the case is denied for reasons other than fraud.
• Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing a NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The policy guidance, except for DACA applications, supersedes 2011 policy guidance. In issuing the policy guidance, USCIS stated it did so to align its NTA policy with Department of Homeland Security removal priorities, including those set by President Trump in his 2017 Executive Order, "Enhancing Public Safety in the Interior of the United States."