United States: USCIS Expands Role in Initiating Removal Proceedings, With Exception for Most Employment-Based Petitions

An NTA is the charging document that begins the process of removing (deporting) a foreign national from the United States. The removal process ends with a foreign national appearing in front of an immigration judge who determines whether the foreign national should be removed from the United States or is entitled to legal relief to remain in the country. U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have concurrent authority to issue NTAs. USCIS also has NTA issuance authority in a defined set of circumstances, and the scope of that authority has been the subject of USCIS policy memos in recent administrations.

The NTA memo issued in June 2018 during the first Trump administration would have significantly expanded USCIS authority, but the policy was not implemented to its maximum extent while it was in effect. That memo was subsequently withdrawn by the Biden Administration in January 2021, and the administration reverted to 2011 USCIS guidance, which directed USCIS to initiate removal proceedings in a narrower range of cases.

This new 2025 memo largely reverts to the more expansive NTA approach articulated in the Trump-era 2018 memo, but with an important exception for beneficiaries of employment-based petitions. The new policy appears to be effective immediately.

Under the new policy, individuals applying for USCIS immigration benefits such as a Form I-539 application to change or extend nonimmigrant status or a Form I-485 application to adjust status to U.S. permanent resident may be at greater risk of NTA issuance in the event their application is denied. According to the policy guidance, USCIS will issue an NTA where:

• USCIS has made an unfavorable decision on the foreign national’s benefit request; and
• the foreign national is not lawfully present in the United States, including foreign nationals whose status has expired by the time their benefit request is denied and has no authorization to remain in the United States.

An exception under the new policy, however, appears to be that USCIS will not issue NTAs to beneficiaries of employment-based petitions under the above circumstances, unless the beneficiary is also the signatory on a Form I-129 temporary worker petition (as is permitted under a narrow set of circumstances, such as when the sponsored foreign worker is the owner of the employer). This NTA exception for beneficiaries of employment-based petitions was not included in the 2018 Trump-era NTA memo, though the NTA policy was not enforced against beneficiaries of employment-based petitions as a routine matter during the first Trump Administration.

Notably, the new policy means that while the principal beneficiaries of employment-based nonimmigrant petitions generally will not be issued an NTA as a result of a denial or revocation of their employer’s petition on their behalf, dependent family members who have filed Form I-539 applications to change or extend their status in connection with their principal family member would receive NTAs under the policy, if their I-539 application is denied and they no longer have valid underlying immigration status. In such a case, it appears that the new policy would result in USCIS initiating removal proceedings against the spouse and child applicants, but not against the principal beneficiary.

By comparison, during the Biden Administration, USCIS policy directed officers to issue an NTA after an unfavorable agency decision only as required by regulation or statute, such as for those who receive denials of applications to lift conditions on permanent residence on Form I-751 or Form I-829, assuming there were no other factors warranting NTA issuance.

Generally, USCIS refers cases involving criminal conduct, arrests, or convictions to ICE for enforcement action determinations, including NTA issuance determinations. That will remain a standard procedure for USCIS in general, but the new NTA policy expands USCIS authority if an immigration benefit request is denied or withdrawn. In these cases, USCIS will issue an NTA against a removable foreign national (which would include individuals who have violated their status or whose status has lapsed) if the foreign national has been arrested for, charged with, or convicted of a criminal offense and the foreign national is not subject to mandatory detention under the certain provisions of immigration law.

Under the Biden-era policy, foreign nationals who were under investigation for, arrested for, or convicted of certain aggravated felonies or other serious public safety violations, were referred to ICE for a decision on NTA issuance. The former policy did not require USCIS to issue NTAs directly after a benefit request was denied or withdrawn.

The new USCIS Policy Memorandum does not affect the rules or policy associated with issuance of NTAs in the following cases:

• Individuals required to be issued an NTA by statute or regulation (e.g., those who receive a denial of a Form I-751 or Form I-829 application to remove conditions on permanent residence);
• Where there is a finding of fraud in the record and the foreign national is deemed removable, even if the basis for the USCIS benefit denial or revocation was not fraud;
• In certain naturalization cases involving deportability or inadmissibility;
• USCIS discretionary authority to issue NTAs in certain circumstances, such as where an applicant receives an I-90 denial for abandonment of lawful permanent resident status or a foreign national’s parole is expired or terminated and they are not lawfully present.

The new policy also does not affect the existing regulatory rules that restrict issuance of NTAs to DACA requestors after denial of a DACA request.

Under the new policy, USCIS says that prosecutorial discretion not to issue an NTA to a particular foreign national may be exercised on a case-by-case basis in consultation with a supervisor, but that it should only be exercised in “very limited and compelling circumstances.” It remains to be seen how this discretion will be utilized.

The impact of the new NTA memo will depend on how fully it is implemented by USCIS during the Trump Administration. A foreign national who is issued an NTA should retain counsel to understand and navigate the removal process. In the meantime, employers and foreign nationals should submit applications as early as possible to minimize the risk of erroneous or other types of denials being issued after a foreign national’s I-94 has expired. Those with criminal charges, arrests, or convictions in their history should consult with immigration counsel in order to understand the potential impact.

Fragomen will closely monitor implementation of the NTA memo and will provide updates as developments occur.