WHAT’S HAPPENING
On February 28, 2025, USCIS issued a Policy Memorandum (PM) expanding its role in initiating removal proceedings for certain foreign nationals, requiring the agency to initiate removal proceedings by issuing a Notice to Appear (NTA) after it denies an application for an immigration benefit if the denial renders the foreign national unlawfully present in the United States. The PM includes a specific carveout for beneficiaries of employment-based petitions but this carve out does not include their dependent family members or beneficiaries who served as the signatory on their I-129 petition.
WHAT YOU NEED TO KNOW
Overview of the Increased Enforcement Power Granted to USCIS
An NTA is a charging document that instructs an individual to appear before an immigration judge. Issuance of an NTA starts the removal process, and generally falls within the authority of the U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). However, USCIS has the authority to issue NTAs under certain circumstances, and the new PM expands that set of circumstances.
Under the new policy, USCIS will issue an NTA where:
There is a denied benefit request - A foreign national’s immigration benefit request, such as a Form I-539 application to change or extend nonimmigrant status or a Form I-485 application to adjust status to permanent residence, has been denied; AND
The foreign national has no underlying nonimmigrant status - The foreign national is not lawfully present in the United States, including where the foreign national’s underlying nonimmigrant status has expired by the time their benefit request is denied and they have no authorization to remain in the United States.
Exception for Principal Beneficiaries of Nonimmigrant Visa Petitions
The PM carves out an exception for beneficiaries of certain employment-based petitions where an NTA will not be issued following the denial of a benefits request even if the denial renders the foreign national beneficiary unlawfully present in the United States.
Exception Does Not Apply To Beneficiaries Who Serve as the Signatory on Their Nonimmigrant Visa Petition
The PM further states that the agency WILL issue an NTA following the denial of a nonimmigrant visa petition if the beneficiary is also the signatory on a Form I-129 petition, which is often the case for certain O-1, E-1/E-2, and H-1B beneficiary-owned nonimmigrant visa petitions where the beneficiary also owns the sponsoring employer and serves as the company signatory on the visa petition.
Exception Does Not Apply to Family Members in Dependent Nonimmigrant Visa Status
Where an employment-based petition is denied or revoked, while USCIS would not initiate removal proceedings against the employment-based petition’s principal beneficiary, the agency would issue an NTA to their dependent family members, if their Forms I-539 are denied and they no longer have valid underlying immigration status following the denial.
Other Situations in Which NTA’s Can Be Issued for Employment-Based Petition Denials
USCIS will issue NTAs to removable foreign nationals, including those who have violated their status or whose status has lapsed, who are not subject to mandatory detention but who have been arrested for, charged with, or convicted of a criminal offense. Previously, USCIS would refer NTA issuance determinations for cases involving criminal conduct, arrests, or convictions to ICE. The new policy requires USCIS to issue NTAs in these cases.
USCIS’s Discretion to Not Issue NTAs Will be Extremely Limited
While the new policy allows for some discretion to not issue an NTA to a particular individual, that discretion may only be exercised on a case-by-case basis in consultation with a supervisor and only in “very limited and compelling circumstances.”
Other Situations Involving NTA Issuance
Mandatory NTA Issuance: This policy does not alter scenarios in which USCIS has historically been required to issue an NTA, which include USCIS denials or terminations of certain immigration statuses (e.g., conditional permanent residency, termination of refugee status, asylum applications) and cases involving fraud, criminal activities, or misrepresentation.
National Security & Criminal Cases: USCIS will prioritize NTA issuance for cases related to national security threats or criminal activity, coordinating with ICE for such cases.
Fraud & Misrepresentation: NTAs will be issued if fraud or misrepresentation is involved in an immigration case, even if the denial is for other reasons.
Temporary Protected Status (TPS): The PM does not change the notification procedures for TPS. If TPS is denied or withdrawn and the individual lacks other lawful status, USCIS will issue an NTA, following the necessary regulations and coordination with ICE if applicable.
Other Special Circumstances: NTAs may be issued in cases like family reunification or specific asylum scenarios, such as when a principal asylum applicant’s case is in removal proceedings.
Recommendations for Foreign Nationals and Employers to Reduce Risk of NTA Issuance
In order to avoid triggering the issuance of an NTA for an employee or their dependent family members the following best practices should be followed:
Beneficiary Owners on O-1, H-1B, and E-1/E-2 Visas Should Not Sign Their Own I-129 Petitions
Wherever possible another senior employee with signing authority should sign the petition to avoid triggering an NTA if the petition is denied.
Filed Extension Requests Early and Utilize Premium Processing Where Available
Where an extension petition or application is adjudicated prior to the expiration of the current grant of nonimmigrant visa status, the denial would not trigger issuance of an NTA for dependents and beneficiary owners who may otherwise be subject to the NTA requirements.
Maintain Underlying Nonimmigrant Status When Applying for Adjustment of Status
In the event of an Adjustment of Status Application denial, if the individuals have maintained their underlying nonimmigrant status they would not be subject to NTA issuance.
Consular Processing Dependent Extensions of Nonimmigrant Status
Given that dependent extensions of status are typically not eligible for premium processing, there is increased risk that the extensions could remain pending beyond the expiration of the current grant of nonimmigrant status. Where the principal beneficiary’s extension of status can be premium processed, following approval, dependent family members can apply for new dependent visa stamps via consular application and reenter with extended validity and not risk an extension of status denial that would trigger an NTA.
Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the USCIS’s expanded authority to initiate removal proceedings may apply to your circumstances, please contact your team at D&S.