Immigration Alert: USCIS to Implement Notice to Appear Policy Memo

Starting October 1, 2018, the United States Citizenship and Immigration Service (USCIS) will begin implementing its June 28, 2018 policy memorandum, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (“NTA Policy Memo”).

According to its announcement on September 26, 2018, USCIS will implement the NTA Policy Memo on an incremental basis. Pursuant to the policy, USCIS may issue a Notice to Appear (NTA) to a foreign national whose Form I-485, Application to Register Permanent Residence or Adjust Status, or Form I-539, Application to Extend/Change Nonimmigrant Status, is denied, where the foreign national applicant does not have valid underlying immigration status. The policy will apply to I-485 and I-539 applications filed prior to the October 1, 2018 implementation date, as well as applications filed on or after that date. By way of background, an NTA is a charging document issued to a foreign national that initiates removal proceedings, requiring the individual to appear before an immigration judge to determine whether he/she should be removed from the United States.

USCIS stated that, at this time, it will not apply the NTA Policy Memo to employment-based petitions (e.g., Form I-129, Petition for Nonimmigrant Worker) and humanitarian applications, but it is expected to do so at a future date. USCIS did not provide a timeline for expanding the policy to other petitions and applications.

Gibney is working with clients to evaluate the impact of this new policy and how it is being implemented. We will provide updates as they become available.

If you have questions about this alert, please contact your designated Gibney or email

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.