Policy Alert: USCIS Will Issue More Foreign Nationals Notices to Appear in Immigration Court

Last week, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance that changed the agency’s policy regarding which foreign nationals will be issued Form I-862, Notice to Appear (NTA). An NTA is issued to begin removal proceedings against an individual and instructs them to appear in front of an immigration judge for a hearing. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) also have the authority to issue NTAs. According to a USCIS news release, “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.”

Purpose of USCIS Updated Guidance

This new guidance is intended to update USCIS procedure in accordance with Department of Homeland Security immigration enforcement priorities under President Trump. These priorities were defined in Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which was issued on January 25, 2017. The Executive Order states, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement…. It is the policy of the executive branch to ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens.” In a significant change from immigration enforcement under President Obama, the Executive Order states that the government will no longer exempt specific classes or categories of removable aliens from potential enforcement and removal.

Categories of Removable Individuals

Although all removable individuals are subject to immigration enforcement, the policy memorandum specifies that the following categories of individuals should be issued NTAs:

  • Aliens described in INA §§ 212(a)(2), (a)(3), (a)(6)(C), 235, and 237(a)(2) and (a)(4), to include aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal; and
  • Aliens who, regardless of the basis for removal:
    • Have been convicted of any criminal offense;
    • Have been charged with any criminal offense that has not been resolved;
    • Have committed acts that constitute a chargeable criminal offense;*
    • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
    • Have abused any program related to receipt of public benefits;
    • Are subject to a final order of removal, but have not departed; or
    • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

*A footnote indicates that chargeable criminal offenses include those defined by state, federal, international, or appropriate foreign law.

Expert Concerns Regarding the Updated Guidance

Unlike immigration policy under President Obama, the prioritized categories are no longer ranked, but are presented as being equally important. According to an analysis from the American Immigration Lawyers Association (AILA), “because it includes those who merely committed an act that could be charged as a crime, all those who entered without inspection become priorities because illegal entry is a crime under 8. U.S.C. §1325.” By targeting individuals who have been charged with a crime but not convicted, the new guidance also undermines the fundamental premise that individuals are innocent until proven guilty. AILA states that these new policies are “reshaping immigration enforcement in a way that is antithetical to American values and our country’s historical commitment to justice and due process.”

These policies will significantly increase the number of individuals who are targeted for removal, which AILA predicts will worsen the existing problems in immigration courts—currently more than 700,00 cases are already backlogged in immigration court. NTAs mark the beginning of immigration court proceedings, so this guidance will likely continue to overload immigration court dockets and strain government resources.

AILA also warns that the new USCIS policy mandates that “NTAs be issued to every person who is ‘not lawfully present’ in the United States at the time an application, petition, or request for an immigration benefit is denied,” except in very limited circumstances. This includes individuals who were denied due to government error, would otherwise have appealed the decision but are discouraged from doing so after receiving an NTA, or who would have willingly left the U.S. after receiving a denial.

What About DACA Recipients?

DACA recipients and requestors are a notable exception to the new guidance. In a concurrently released policy memorandum, USCIS specifies that “Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance 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. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.”

The updated USCIS policy guidance represents a significant shift in the agency’s role in immigration enforcement and priorities, and removable individuals who were not priorities for deportation under previous guidance should be aware of how these changes will impact them. If you are concerned about how this may affect your immigration status and ability to remain in the U.S., please reach out to our attorneys to schedule a consultation.

Adjustment of Status Based on Marriage to a U.S. Citizen and Effect of Failure to Depart the U.S. After Grant of Voluntary Departure Order

Question: I am from Jamaica and entered the U.S. in 2001 on a visitors visa and have never left since then.  In 2003, I was in Immigration Court proceedings and the Immigration Judge granted me Voluntary Departure.  I was supposed to leave in early 2004, but I stayed in the United States.  In 2007, I married my husband, who was a green card holder at that time.  Earlier this year, my husband was approved for naturalization and he is now a U.S. citizen.  Can he file paperwork for me now so I can get my green card?  Do I have to leave the country to apply? 

SRW Border Lawyers Answer:   Hello, Thank you for submitting your question. 

While I cannot thoroughly analyze your case and give you specific advice without learning more about your case, I can give you some brief advice to address your concerns.  If you would like a detailed professional analysis of your case, as well as an opportunity to have us thoroughly explain your options and the processes to you, please contact our office for a consultation

Since your husband is now a U.S. citizen, he may be able to file a family-based immigrant petition on your behalf (I-130) to accord you status as an “Immediate Relative”, which means you are not subject to any priority date backlogs and can immediately pursue your green card. 

The good news is that since you last entered the U.S. lawfully (i.e. in 2001 on a visitors (B-2) visa), you may be eligible to adjust your status (I-485) from within the United States under INA §245 to that of lawful permanent resident (aka green card holder).  Normally, one of the main eligibility requirements to adjusting status from within the U.S. is that you have maintained lawful status (which you have not from what you have indicated).  However, this requirement is waived for ‘immediate relatives’ of U.S. citizens.  

For more information regarding adjusting your status based on marriage to a U.S. citizen, please visit:

However, your case does have a particularly twist arising from the fact that you failed to depart the U.S. after being issued a Voluntary Departure order.  When you did not leave the U.S. in 2004 per your Voluntary Departure order, your Voluntary Departure order converted to a removal order.  As a result, you are ineligible to adjust your status without first obtaining consent to reapply for admission.  In order to apply for this consent, you would need to submit Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.  For a detailed discussion of how this application is adjudicated, please visit:

Ideally, you will have all the paperwork available from your Immigration Court proceedings for an attorney to review to ensure that you do in fact require this waiver.  If not, you may need to file a Freedom of Information Act Request to obtain a copy of your file and the relevant court records.

To summarize, given the complexity of your case, I would highly advise you to minimally consult with an experienced immigration attorney before filing any paperwork with USCIS. 

Good luck! 

Q: What types of defenses are available to deportation?

A: There are several different defenses to removal from the U.S., including: cancellation of removal for both permanent residents and non-permanent residents; political asylum; adjustment of status; and voluntary departure. After careful review of the facts of each case, an experienced immigration lawyer can explain the defense(s) available in your specific case.