News: USCIS NTA Memo Roll out – Phased approach – I539(COS), I485(AOS) from Oct 1st

USCIS has released a press release today on the details on the implementation of the Notice to Appear(NTA) memo guidance from June 2018. They have clarified that NTA memo will be implemented in a phased approached incrementally and will not impact all visa types. Below are the details. USCIS held teleconference to clarify few things, we have included that update as well.

If you are not aware of NTA and the memo, you should read USCIS NTA Policy Memo – Timelines – H1B, L1 Impact

Summary of the NTA Implementation Memo by USCIS – Who’s impacted ?

• NTA Policy Active from October 1st, 2018 : USCIS indicated that starting from October 1st, 2018, they may issue Notice to Appear(NTA) to applications that were denied by USCIS that are under category of I-485 ( for Permanent Resident or Adjust Status) and I-539 (for extend or change of Non-immigration status), whose I-94 would have expired.
• Employment based Petitions and Humanitarian applications  Not Included : USCIS clearly indicated that they do not plan to implement NTA for employment based applications like H1B, L1 and Humanitarian application petitions for October 1st roll out. As USCIS said that they will implement NTA in an incremental approach, it may be part of future roll outs, but for now, it does not apply.
• Adequate Time to Exit USA after Denial : USCIS also clarified that they will send denial letters first and will make sure adequate notice time is given for them to depart United Status after Denial. If such applicants, whose petitions were denied and not in status do not leave US on time, USCIS may issue NTAs for such applicants.
• USCIS to Provide Details to Review Info, Travel Compliance : USCIS mentioned that they will provide details on how applicants can review their info regarding “period of their authorized stay” , “check travel compliance” and “validate departure from US”.  The press release do not additional details on how you can check, we need to wait and see.
• Fraud, National Security NTAs : USCIS said that they would continue to issue NTAs related to criminal records, fraud or any national security concerns irrespective of the visa status. USCIS will use their discretion for such cases and issue NTAs as needed.

Public Teleconference : USCIS conducted teleconference to clarify on Sept 27th from 2 to 3 PM EST and clarified few things. Below is the update. 

• NTA will NOT be issued automatically when a denial is sent to the applicant. USCIS will wait for certain period of time until the expiration of the appeal or motion filed with them. In general, you can file a motion or appeal within 30 days and they add 3 days, if the petition is mailed. So, usually a total of 33 days. Check more details on How to Appeal on USCIS.gov
• All I-485 and I-539 denials after October 1st : All of the applications filed under I-485 and I-539 before or after October 1st, if their decision is in denial state, they would be subject to new NTA regulation.
• Denial Letter Language : USCIS mentioned that they will clearly add language in the denial letter that gives notice of unlawful presence and some explanation as well when they should depart and NTA issuance situation. If the individuals are not in proper authorized stay and do not depart within the end of appeal period, they may issue an NTA.
• Appeal or Motion : If there is an appeal or motion to reopen filed, then NTA would not be issued until the final decision of the appeal or motion. If the decision of appeal/ motion is favourable, then USCIS will work with ICE so that NTA does not come in.
• No specifics on I-539 : They did not really clarify, if H4, L2 and O3 kind of visa forms situation that fall under employment based dependents would get NTAs…basically, it means that USCIS may issue NTA even for such forms or visa types.  The scenario could be you file for H1B ( I-129) and H4 with I-539 and ultimately you get denial after I-94 expiry for I-129 H1B along with I-539 denial for H4. Then the H1B holder will not be subject to NTA, but I-539 form H4 maybe subject to NTA..so, this could be tricky as it is not fully clarified in teleconference.

Does this NTA implementation Impact on H1B, L1 Extensions ?
No, the October 1st, is only for I-539 and I-485 applications and does not apply to H1B or L1 Petitions denials with their I-94 expired.

Do we know what all Visa types under I-539 like H4, L2, E fall under this NTA for October 1st ?
As of today, we do not have such details. While some of these like H4 and L2 fall under employment based dependent visa applicants, we do not know how USCIS will treat them. The teleconference also did not clarify that info. So, we can assume that H4, L2 and O3 would fall under this NTA memo roll out and you need to be careful.

What is adequate time in terms of USCIS for NTA issuance ?
Adequate time was clarified in teleconference as standard 30 days + 3 days, which comes to total of 33 days to file motion/appeal. Read above teleconference summary for more info.

Some things are clear, some or not…nevertheless, it is going to be tough, so file on time to avoid NTA situations.  What do you think ?  Any questions ?

References :USCIS press Release NTA Guidance