October 5, 2018

On June 28, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum that would expand the types of cases where USCIS will issue a Notice to Appear (NTA) in the course of adjudicating an application, petition, or request for an immigration benefit. On July 30, 2018, USCIS announced that implementation of the June memo was being postponed until operational guidance could be issued. In late September 2018, USCIS announced that it would begin implementing parts of the memo on October 1, 2018, using an “incremental approach.”

The June 2018 memo is titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” (hereinafter “June memo”). For a detailed summary of its contents and how it represents a change from the previous policy, practitioners may wish to read CLINIC’s July 2018 practice pointer on this topic. The June memo specifies that if USCIS issues an “unfavorable decision” on an application, petition, or request and the individual is not lawfully present, USCIS will issue an NTA. It also directs USCIS to issue NTAs against removable noncitizens in certain other circumstances, such as cases involving criminal history or suspected fraud, misrepresentation, or “abuse of public benefit programs.”

According to the late September 2018 announcement, starting on October 1, 2018, “USCIS may issue NTAs on denied status-impacting applications,” including but not limited to Form I-485 and Form I-539. The webpage does not define a “status-impacting application.” It also states that the June memo “will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time.” It does not specify what particular forms are considered “employment-based petitions” or “humanitarian applications and petitions.”

On September 27, 2018, USCIS held a national stakeholder engagement in which officials provided an overview of the June memo and answered some pre-submitted questions. The USCIS officials did not define “status-impacting application” or specify what matters are considered to fall within “humanitarian applications and petitions” exemption. During the call, a USCIS official confirmed that the agency expected that the number of NTAs will increase as a result of this guidance, and that USCIS will issue NTAs in a broader range of cases than before. A USCIS official also stated that that upon “full implementation” of the June memo, USCIS would refer fewer cases to ICE, instead issuing more NTAs directly. USCIS subsequently posted the questions and answers from the September 27 engagement in its Electronic Reading Room.

The information that USCIS has provided about its planned implementation of the June memo on its website and during the call includes the following:

• USCIS will apply the June memo to cases that were filed before it was issued. USCIS will apply the June memo to cases where USCIS issues a denial on or after October 1, 2018, regardless of when the application or petition was filed.
• Beginning on October 1, 2018, USCIS will add language to many denial letters and warn individuals that if they are no longer in a period of authorized stay and do not depart, USCIS may issue an NTA. USCIS will provide details about how applicants “can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.” 
• People with pending appeals of denials may be temporarily protected from NTA issuance. Generally, USCIS will not issue an NTA immediately upon denial, but will instead wait for the expiration of the appeal or motion period (generally 33 days from date of decision, but this can vary). If the person timely files an appeal or motion, USCIS will not issue an NTA until a decision on the appeal or motion is complete. If the person has multiple pending petitions and/or applications that “impact status or authorized periods of stay,” USCIS will wait for them to be adjudicated before issuing an NTA. However, USCIS may issue an NTA at an earlier stage “as appropriate.” No examples were given of when this would be “appropriate.”
• A noncitizen cannot avoid an NTA being issued by withdrawing a request before USCIS adjudicates the case. USCIS may issue an NTA even if the applicant withdraws before adjudication, since withdrawal “does not interrupt [USCIS’s] authority or responsibility to pursue enforcement actions as appropriate.”
• If an individual is placed into removal proceedings and later there is “favorable action” on a motion or appeal of a denial, USCIS will work with ICE to make sure ICE is aware of the favorable administrative action. USCIS officials did not elaborate on how this process would work.
• New “Prosecutorial Discretion Review Panels” will be established in every USCIS office authorized to issue NTAs and will replace existing NTA panels. The panels will convene when they receive a recommendation submitted by an individual USCIS adjudicator who believes that prosecutorial discretion is warranted in a given case based on case-specific facts. If the panel recommends that prosecutorial discretion be exercised not to issue an NTA, the appropriate office director must also concur with the recommendation. Thus, under the new regime, the default is for USCIS to issue an NTA, and the Prosecutorial Discretion Review Panel only convenes when an individual officer decides that in a particular case discretion not to issue an NTA may be warranted.

Which Parts of the June Memo Are Not Yet Being Implemented, According to USCIS, as of October 1, 2018?

The USCIS webpage on the June memo says that it “will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time”; rather existing guidance will continue to be applied to those types of cases. USCIS has not publicly defined which petitions and applications this exemption would apply to, and its scope remains unclear. During the stakeholder engagement, a USCIS official gave as examples of employment-based petitions that would be exempted from the current phase of implementation I-140 (Immigrant Petition for Alien Workers) petitions and I-129 (Petition for a Nonimmigrant Worker) classifications. A USCIS official explained that since these are petitions and not applications, they are not included in this part of the June memo implementation. A USCIS official also stated that provisional waivers (Form I-601A) would not be included in this phase of the June memo’s implementation because they do not confer status or authorized stay.

During the engagement, USCIS officials also stated that a number of other parts of the June memo are not included in this part of its implementation, including:

• Temporary Protected Status cases where the application is denied or withdrawn and the person has no other lawful immigration status (see section II of the June memo)
• Cases involving fraud, misrepresentation, and abuse of public benefits (see section III of the June memo). A USCIS official also stated that generally they would continue to issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) in cases where fraud is suspected
• Cases involving criminal issues (see section IV of the June memo)

USCIS’s explanation of how the above types of cases would be handled, and whether any parts of them would be handled under the June memo beginning on October 1, was not clear. It may be that, to the extent that USCIS is not yet applying some parts of the June memo, it will follow the previous NTA policy memorandum from November 2011 with respect to those types of cases. During the call USCIS officials also stated that USCIS has discretion and authority to issue an NTA on any case where the individual is removable and that if an individual is removable “for any reason” at the time of denial, an NTA would be appropriate under the June memo. USCIS states on its webpage that it will “continue to prioritize cases of individuals with criminal records, fraud, or national security concerns and will continue the current processes of using our discretion in issuing NTAs on these case types.” Further, USCIS has not specified when it will begin subsequent implementation phases, and when it does, whether it will apply the June memo retroactively to pending or previously denied cases.

Unanswered Questions

The June memo left many important questions unanswered, and unfortunately the September 27 stakeholder engagement raised even more questions. Unanswered questions include:

• Which specific applications and petitions is USCIS referring to when it says that the June memo will not be implemented with respect to “humanitarian applications and petitions at this time”? Does this include, for example, petitions for Special Immigrant Juvenile Status and related adjustment applications? Does it include Form I-485 filed in cases where the underlying basis was a humanitarian protection, such as U or T nonimmigrant status or a Violence Against Women Act self-petition? Does USCIS intend to apply the June memo to “humanitarian applications and petitions” in the future, and is so, on what timeline?
• Exactly what parts of the June memo went into effect on October 1 and what parts did not? What is USCIS’s intended timeline for implementing the rest of the June memo and reaching “full implementation”?
• How will USCIS implement the June memo’s section on suspected “abuse of public benefits program”? How does it define this term? What evidence will be looked at? What factors will be considered?
• In what situations will USCIS refer cases with certain criminal history to ICE before adjudicating?
• How will the June memo affect DACA recipients who are denied some other benefit that makes them fall within the June memo, if they still have DACA?
• What instructions have USCIS officers been given on how to exercise prosecutorial discretion? What types of cases will be referred to the prosecutorial discretion review panel?

Practitioners can submit questions about the guidance to public.engagement@uscis.dhs.gov.

Practice Tips

Practitioners may want to review CLINIC’s Practice Pointers resource, which was last updated on July 31, 2018. In particular, Questions 18 through 21 of that resource provide practice-focused considerations. In light of the recent updates from USCIS regarding the agency’s implementation plans, practitioners may also want to consider the following strategies:

• If a client’s application, petition, or request is denied, file an administrative appeal or motion to reopen or reconsider with USCIS, and/or re-file remedying the deficiency, as appropriate
• In the cover letter laying out the client’s eligibility for the benefit sought (or in response to an RFE or NOID), make an affirmative request, in the alternative, for consideration of prosecutorial discretion in the event that USCIS denies the benefit (assuming the client wishes to avoid removal proceedings).

More Resources

USCIS indicated that it plans to post updates regarding the memo’s implementation to its “Notice to Appear Policy Memorandum” webpage, so practitioners can periodically check that page for additional information. CLINIC has also issued resources on the June memo, including a practice pointer and a resource page. Watch for a CLINIC announcement about an upcoming webinar on this issue, tentatively planned for November 8, 2018 at 2:00 p.m. Eastern.