USCIS Updates Notice to Appear Policy Guidance to Support DHS Enforcement Priorities

On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance (PDF, 139 KB) that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security.

A Notice to Appear (NTA) is a document given to a foreign national that instructs them to appear before an immigration judge on a certain date. The issuance of an NTA commences removal proceedings against the foreign national. Under the new guidance, USCIS officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.

USCIS, along with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), has legal authority under current immigration laws to issue NTAs. This Policy Memorandum updates and broadens the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA. The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is 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 an 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 an 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 revised policy does not change the USCIS policy for issuing an NTA in the following categories:

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
  • DACA recipients and applicants when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

Interim and final policy memos are official USCIS policy documents and are effective the date the memos are issued.

USCIS Extends Temporary Protected Status for Yemen

Secretary of Homeland Security Kirstjen M. Nielsen has announced her determination that an extension of the Temporary Protected Status (TPS) designation for Yemen is warranted pursuant to the Immigration and Nationality Act. After carefully reviewing conditions in Yemen with interagency partners, Secretary Nielsen determined that the ongoing armed conflict and extraordinary and temporary conditions that support Yemen’s current designation for TPS continue to exist.

Therefore, pursuant to the statute, she has extended Yemen’s TPS designation for 18 months. Individuals from Yemen with TPS will be eligible to re-register for an extension of their status for 18 months, through March 3, 2020. Prior to the conclusion of the 18-month extension, the Secretary will review conditions in Yemen to determine whether its TPS designation should be extended again or terminated. There are approximately 1,250 Yemeni TPS beneficiaries. This 18-month extension of Yemen’s designation for TPS permits current Yemeni TPS beneficiaries to re-register for TPS and remain in the United States with work authorization through March 3, 2020.

To be eligible for TPS under Yemen’s current designation, along with meeting the other eligibility requirements, individuals must have continuously resided in the United States since January 4, 2017, and have been continuously physically present in the United States since March 4, 2017.

OFLC Uploaded New Prevailing Wage Data

On July 1, 2018, the Office of Foreign Labor Certification (OFLC) uploaded the newest prevailing wage data from the Occupational Employment Survey as generated by the Bureau of Labor Statistics for the year from July 2018 – June 2019. The effective date is July 1, 2018. Prevailing wage determinations issued from the National Prevailing Wage Center will reflect the new data.

Supreme Court Upholds President Trump’s Third Travel Ban

The Supreme Court upheld President Trump’s September 24, 2017 Proclamation (Travel Ban 3.0), which currently excludes nationals from seven countries, stating that the proclamation was “squarely within the scope of Presidential authority under the INA.” (Trump v. Hawaii, 6/26/18) Chief Justice Roberts delivered the opinion of the Court, and Justices Kennedy, Thomas, Alito, and Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. The travel restrictions are imposed on nationals form Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia. Nationals of Chad were also included in the original list but the travel restrictions were removed on April 10, 2018.

Executive Order Affording Congress an Opportunity to Address Family Separation

In an executive order issued on 6/20/2018 and titled “Affording Congress an Opportunity to Address Family Separation,” President Trump ordered DHS to take measures to detain family units without separating children from parents and ordered DOJ to file a request to modify the Flores settlement, among other things. The White House provided a transcript of remarks delivered by President Trump and Vice President Pence at the signing of the executive order. (83 FR 29435, 6/25/18)