Around the same time that USCIS issued its new policy regarding RFEs and NOIDs, noted above, USCIS updated its guidance for referring cases to the immigration court through the issuance of a Notice to Appear (NTA), and 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. Shortly after USCIS announced this new policy, however, its component agencies reported that they could not implement the policy because internal operational guidance had not yet been issued. But, make no mistake: the government will be working to make this new policy operational as soon as it can.
What does this mean and who will be affected? While there are instances where USCIS is required by statute or regulation to issue a Notice to Appear and has done so, NTAs traditionally have not been issued where, for example, an applicant for adjustment of status is denied and no longer has an underlying nonimmigrant visa status — and thus becomes unlawfully present in the United States. The updated guidance makes clear that USCIS will be more vigilant in not just identifying possible inadmissibility issues, but actually following through with these discoveries and referring the individual to immigration court.