USCIS to Implement Notice to Appear Policy in Phases

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Originally reported on July 10, 2018, USCIS issued a policy memorandum which stated that USCIS will issue Notice to Appear (NTA) to any foreign nationals whose adjustment of status applications are denied. An NTA is a document that is issued to individuals to place them in deportation proceedings and directing them to appear before an immigration judge. Previously, the issuing of NTA’s have been handled by the Immigration and Customs Enforcement agency (ICE). Also, previously, if an application for immigration benefits is denied, the foreign national might be able to depart the U.S. quickly, and either remain abroad or obtain approval for another visa that would enable them to return to the U.S.

In an announcement issued by the agency today, starting from October 1, 2018, USCIS will apply the policy to Form I-485 permanent residence applicants and to Form I-539 applicants to extend or change nonimmigrant status. Employment-based petitions, including H-1B, L-1, E and O petitions, and humanitarian applications are not subject to the enforcement policy at this time.

It is anticipated that a foreign national whose I-485 or I-539 application is denied and who has no underlying valid immigration status would receive a notice to depart the United States. Those who do not depart timely could be issued a Notice to Appear before an immigration judge, who would determine whether the foreign national should be removed from the United States or is entitled to legal relief that permits him or her to remain.  USCIS is soon expected to provide further information on how the NTA policy will be implemented.

Foreign nationals should take all possible precautions to ensure that their work visa petitions are filed and adjudicated to completion before their existing status expires, so that if the petition is denied, the person will still be in another status and can avoid an NTA.

To find out more about the new rules or other investor visas, contact Scott Legal, P.C.


Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at

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