Effective October 1, USCIS began implementing its policy of referring cases to the immigration court through the issuance of a Notice to Appear (NTA) on denied status-impacting applications, thus increasing its enforcement actions to a whole host of cases that normally are not automatically referred for proceedings. Service of the NTA provides a foreign national with notice that deportation proceedings are being initiated and that they are now under the jurisdiction of the immigration courts.

Although USCIS had had longstanding authority to issue “referral NTAs” to ICE, USCIS exercised this authority sparingly and only in specific situations. Not anymore.

In announcing the implementation of its new policy, USCIS makes clear that it will be taking an incremental approach; in other words, it will not be referring all cases to ICE. Here is a summary of how USCIS expects to implement the new policy and some procedural considerations:

• This initial implementation period does not include cases involving abuse of public benefits.
• Actions on I-129 petitions are not included in this implementation period.
• Once the NTA has been filed with the Executive Office for Immigration Review (EOIR), USCIS cannot cancel the NTA; however, in certain circumstances, USCIS could coordinate with ICE to determine if termination is warranted.
• Withdrawing an application does not cancel USCIS’s authority to issue an NTA; USCIS may issue an NTA, even if the individual withdraws the application.
• USCIS will add language to denial notices to ensure that benefit seekers are provided adequate notice when an application for an immigration benefit is denied, by indicating that if the applicant is no longer in a period of authorized stay, and does not depart the United States, USCIS may issue an NTA. USCIS will also provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.
• Generally, USCIS will not issue an NTA immediately upon the denial of an immigration benefit; it will usually wait for the expiration of the motion or appeal period before issuing the NTA. However, USCIS reserves the right to issue an NTA before or after the motion or appeal period. If an NTA is issued before a motion or appeal is filed or while it is pending, and USCIS takes favorable action on the motion or appeal, USCIS will work with ICE to make ICE aware of the favorable action.
• If a USCIS adjudicator thinks discretion is warranted in a particular case, the adjudicator may submit a recommendation to the prosecutorial review panel, based on the individual facts of the case.
• An individual may request USCIS to issue an NTA. The request must be made in writing to the office with the jurisdiction over the case. USCIS retains discretion to deny such a request.
• NTAs issued by USCIS may be served in person or by mail.
• There is no change to TPS (temporary protected status) cases. If USCIS issues an unfavorable decision on an application other than TPS and the individual’s TPS has terminated, USCIS may issue an NTA.