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Employment-Based Petitions Exempt (at Least for Now) Under New NTA Policy

Authors: Melissa Manna (Raleigh), Samantha D. Lloyd (Denver)

Published Date: September 28, 2018

Beginning October 1, 2018, U.S. Citizenship and Immigration Service (USCIS) will begin a staggered rollout of a new notice to appear (NTA) policy. The first phase of the rollout does not include employment-based petitions.

The NTA policy authorizes immigration officers to issue NTAs and thus initiate the first step in removal (deportation) proceedings for those deemed to be removable from the United States after the denial of an immigration benefit. USCIS deployed the NTA policy in July 2018 but then later put it on hold while it developed additional guidance for the policy’s application.   

In a recent announcement and during a September 27, 2018, stakeholder teleconference, USCIS offered additional details about the policy’s implementation and highlighted the following information:

  • The initial focus is on applications (as opposed to petitions) and the policy affects adjustments of status (Form I-485), applications for naturalization (Form N-400), and applications to extend or change nonimmigrant status (Form I-539), among others.
  • Employment-based petitions (including those based on Forms I-129 and I-140) are not included in the initial rollout, nor are humanitarian applications and petitions.
  • Generally speaking, USCIS will not immediately issue an NTA upon the denial of an immigration benefit. It will wait for the expiration of the motion or appeal period before issuing an NTA—though it is worth noting that USCIS reserves the right to issue an NTA at any point during the adjudication period, where appropriate.
  • The NTA policy does not affect motions to reconsider or reopen, or appeals. If USCIS ultimately approves an application after an NTA has been issued, it will coordinate with U.S. Immigration and Customs Enforcement (ICE) to make sure that ICE is aware of the favorable outcome. USCIS cannot cancel or withdraw an NTA that it has issued.
  • The NTA policy does not include initial requests for deferred action for arrivals (DACA), renewals, or requests for DACA-related benefits.
  • USCIS may, in its discretion, issue an NTA at the request of a removable foreign national so that he or she may seek lawful status or other relief during removal proceedings.
  • As USCIS begins implementing the NTA policy, it will create a public-facing web page that will provide additional guidance on the policy and examples of scenarios that may trigger the issuance of NTAs.

USCIS has not provided a timeline for any additional implementation measures.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the NTA policy and will post updates on the Immigration blog as additional information becomes available.

Melissa Manna  (Raleigh)

Melissa Manna
Melissa Manna is an Immigration Practice Group Writer. Her primary focus is writing and editing legal articles relating to immigration for the firm’s online and print publications, websites, and newsletters. Prior to joining Ogletree Deakins, Melissa spent 9 years as in-house counsel at TowerCo, one of the largest independent wireless tower companies in the U.S., representing the company in all aspects of commercial real estate. During that time she managed due diligence, advised and...

Samantha D. Lloyd  (Denver)

Samantha D. Lloyd
*Currently licensed in Illinois only. Samantha concentrates in complexcorporate immigration matters for companies of all sizes, including H 1B, H-2B,L-1, O-1, and TN nonimmigrant visas; PERM Labor Certifications and EB- 2/3immigrant petitions; and EB-1 Extraordinary Ability/Multinational Managerimmigrant petitions. Samantha also frequently participates in pro bono clinics.After undergrad, Samantha deferred law school for a year to teach English tohigh-school students in Spain. She isproficient...

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