Important Updates
Important Updates
May 21, 2025 | United StatesUnited States: Protecting Against Immigration Fraud Schemes
May 21, 2025 | United KingdomLBN: Youth Mobility is a Good Start - But Britain’s Immigration System Still Needs a Business Reset
May 21, 2025 | United StatesNegocios Now Names Associate Ana Gabriela Urizar to NYC-TriState Latinos 40 Under 40 Class of 2025
May 21, 2025 | South AfricaSouth Africa: Extended Duration of Stay for Nationals of Lesotho
May 21, 2025 | United Arab EmiratesUnited Arab Emirates: Reminder of 2025 Deadline for Mainland Private Sector Employers to Increase Emiratization Rate
May 21, 2025 | United StatesUnited States: Protecting Against Immigration Fraud Schemes
May 21, 2025 | United KingdomLBN: Youth Mobility is a Good Start - But Britain’s Immigration System Still Needs a Business Reset
May 21, 2025 | United StatesNegocios Now Names Associate Ana Gabriela Urizar to NYC-TriState Latinos 40 Under 40 Class of 2025
May 21, 2025 | South AfricaSouth Africa: Extended Duration of Stay for Nationals of Lesotho
May 21, 2025 | United Arab EmiratesUnited Arab Emirates: Reminder of 2025 Deadline for Mainland Private Sector Employers to Increase Emiratization Rate
May 21, 2025 | United StatesUnited States: Protecting Against Immigration Fraud Schemes
Subscribe
Fragomen.com home
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMedia
Search Fragomen.com
  • Our Services
    For EmployersFor IndividualsBy IndustryCase Studies
  • Our Tech & Innovation
  • Our People
  • Our Insights
    Worldwide Immigration Trends ReportsImmigration AlertsEventsMedia MentionsFragomen NewsBlogsPodcastsVideos
  • Spotlights
    Navigating Immigration Under the Second Trump AdministrationHumanitarian and Evolving Legal Pathways (HELP)Vietnamese ImmigrationImmigration Matters: Your U.S. Compliance RoadmapFragomen Consulting EuropeAustralian Immigration: New Skills in Demand Visa
  • About Us
    About FragomenOfficesResponsible Business PracticesFirm GovernanceRecognition

Our Services

  • For Employers
  • For Individuals
  • By Industry
  • Case Studies

Our Tech & Innovation

  • Our Approach

Our People

  • Overview / Directory

Our Insights

  • Worldwide Immigration Trends Reports
  • Immigration Alerts
  • Events
  • Media Mentions
  • Fragomen News
  • Blogs
  • Podcasts
  • Videos

Spotlights

  • Navigating Immigration Under the Second Trump Administration
  • Humanitarian and Evolving Legal Pathways (HELP)
  • Vietnamese Immigration
  • Immigration Matters: Your U.S. Compliance Roadmap
  • Fragomen Consulting Europe
  • Australian Immigration: New Skills in Demand Visa

About Us

  • About Fragomen
  • Offices
  • Responsible Business Practices
  • Firm Governance
  • Recognition
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMedia
  • Insights

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

March 5, 2025

insight-news-default

Country / Territory

  • United StatesUnited States

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

At a glance

  • Effective immediately, USCIS is implementing an enforcement policy that requires the agency to initiate removal proceedings after it denies an application for an immigration benefit if the foreign national is no longer lawfully present in the United States.
  • The policy exempts foreign beneficiaries of employment-based petitions from the policy but does not exempt their dependent family members.
  • The memo also expands USCIS authority to initiate removal proceedings against certain foreign nationals with prior criminal charges, arrests, or convictions.

The issue

On February 28, U.S. Citizenship and Immigration Services (USCIS) issued guidance that expands the circumstances under which the agency will initiate removal proceedings against a foreign national by issuing a Notice to Appear (NTA). The new policy is similar to a June 2018 NTA Memo, issued by USCIS under the first Trump Administration, with some important differences.

Background

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.

USCIS denials and the new policy

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.

Exception for beneficiaries of employment-based petitions

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.

Cases involving criminal issues

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.

What will remain the same under the new NTA policy?

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.

Can USCIS decide not to issue NTAs?

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.

Looking ahead

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.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen. 

Country / Territory

  • United StatesUnited States

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Explore more at Fragomen

Media mentions

LBN: Youth Mobility is a Good Start - But Britain’s Immigration System Still Needs a Business Reset

UK Managing Partner Nadine Goldfoot reflects on how the UK’s immigration system might adapt to better support business and short-term mobility.

Learn more

Awards

Negocios Now Names Associate Ana Gabriela Urizar to NYC-TriState Latinos 40 Under 40 Class of 2025

Negocios Now names Associate Ana Gabriela Urizar to its NYC-TriState Latinos 40 Under 40 Class of 2025 list.

Learn more

Video

Digital Nomad Visas Explained: How to Travel and Work Remotely

Learn the key requirements for digital nomad visas and find out which countries you can apply to as a remote worker or freelancer. 

Learn more

Media mentions

Financial Times Adviser: Relocating to the UK: An Immigration Lawyer’s Guide for US clients

Practice Leader Olga Nechita provides practical guidance on navigating UK immigration routes, settlement options and key considerations for applicants.

Learn more

Video

New DOLE Rules for Employing Foreign Nationals | #MobilityMinute

Senior Business Immigration Consultant Missy Mae Makil discusses the new DOLE rules for employing foreign nationals in the Philippines.

Learn more

Media mentions

Research Professional News: Immigration White Paper Offers Employers Costs without Clarity

UK Government Affairs Strategy Director Shuyeb Muquit examines how the UK’s new Immigration White Paper could affect talent mobility and growth in the life sciences sector.

Learn more

Media mentions

An Interview with Partner Abeer Al Husseini (الاقتصادية)

Partner Abeer Al Husseini discusses recent changes in Saudi Arabia's commercial regulations, their impact on international businesses and how they support Vision 2030.

Learn more

Awards

Fragomen and Talent Beyond Boundaries Win "Partnership with an International Charity" at Better Society 2025 Awards

Fragomen and Talent Beyond Boundaries received the â€śPartnership with an International Charity” award at the 10th Annual Better Society Awards.

Learn more

Blog post

Freelance Licence in the UAE: What You Need to Know in 2025

Corporate Services Director Elena Caron outlines essential information and updates regarding obtaining a freelance licence in the UAE, highlighting key requirements and benefits for freelancers.

Learn more

Media mentions

Global Mobility Lawyer: Immigration White Paper Sends Message That the UK is “Closed for Business”

Partner Rajiv Naik discussed how UK employers can prepare for immigration reforms by reviewing policies and aligning mobility with workforce planning.

Learn more

Blog post

A System Reset Presents Challenges and Opportunities: The UK’s Immigration White Paper in Focus

UK Government Affairs Strategy Director Shuyeb Muquit discusses how the UK’s Immigration White Paper presents both challenges and opportunities, highlighting the need for a system reset to address immigration issues effectively.

Learn more

Media mentions

AMCHAM Luxembourg: Interview – Virginie Todesco, Fragomen

Immigration Manager Virginie Todesco highlights how Luxembourg’s clear immigration system and strategic reforms attract global talent and employers.

Learn more

Media mentions

LBN: Youth Mobility is a Good Start - But Britain’s Immigration System Still Needs a Business Reset

UK Managing Partner Nadine Goldfoot reflects on how the UK’s immigration system might adapt to better support business and short-term mobility.

Learn more

Awards

Negocios Now Names Associate Ana Gabriela Urizar to NYC-TriState Latinos 40 Under 40 Class of 2025

Negocios Now names Associate Ana Gabriela Urizar to its NYC-TriState Latinos 40 Under 40 Class of 2025 list.

Learn more

Video

Digital Nomad Visas Explained: How to Travel and Work Remotely

Learn the key requirements for digital nomad visas and find out which countries you can apply to as a remote worker or freelancer. 

Learn more

Media mentions

Financial Times Adviser: Relocating to the UK: An Immigration Lawyer’s Guide for US clients

Practice Leader Olga Nechita provides practical guidance on navigating UK immigration routes, settlement options and key considerations for applicants.

Learn more

Video

New DOLE Rules for Employing Foreign Nationals | #MobilityMinute

Senior Business Immigration Consultant Missy Mae Makil discusses the new DOLE rules for employing foreign nationals in the Philippines.

Learn more

Media mentions

Research Professional News: Immigration White Paper Offers Employers Costs without Clarity

UK Government Affairs Strategy Director Shuyeb Muquit examines how the UK’s new Immigration White Paper could affect talent mobility and growth in the life sciences sector.

Learn more

Media mentions

An Interview with Partner Abeer Al Husseini (الاقتصادية)

Partner Abeer Al Husseini discusses recent changes in Saudi Arabia's commercial regulations, their impact on international businesses and how they support Vision 2030.

Learn more

Awards

Fragomen and Talent Beyond Boundaries Win "Partnership with an International Charity" at Better Society 2025 Awards

Fragomen and Talent Beyond Boundaries received the â€śPartnership with an International Charity” award at the 10th Annual Better Society Awards.

Learn more

Blog post

Freelance Licence in the UAE: What You Need to Know in 2025

Corporate Services Director Elena Caron outlines essential information and updates regarding obtaining a freelance licence in the UAE, highlighting key requirements and benefits for freelancers.

Learn more

Media mentions

Global Mobility Lawyer: Immigration White Paper Sends Message That the UK is “Closed for Business”

Partner Rajiv Naik discussed how UK employers can prepare for immigration reforms by reviewing policies and aligning mobility with workforce planning.

Learn more

Blog post

A System Reset Presents Challenges and Opportunities: The UK’s Immigration White Paper in Focus

UK Government Affairs Strategy Director Shuyeb Muquit discusses how the UK’s Immigration White Paper presents both challenges and opportunities, highlighting the need for a system reset to address immigration issues effectively.

Learn more

Media mentions

AMCHAM Luxembourg: Interview – Virginie Todesco, Fragomen

Immigration Manager Virginie Todesco highlights how Luxembourg’s clear immigration system and strategic reforms attract global talent and employers.

Learn more

Stay in touch

Subscribe to receive our latest immigration alerts

Subscribe

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • UK Regulatory Requirements

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • UK Regulatory Requirements

Have a question?

Contact Us
  • LinkedIn
  • Youtube
  • Instagram
  • Facebook
  • Twitter

© 2025 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

Please note that the content made available on this site is not intended for visitors / customers located in the province of Quebec, and the information provided is not applicable to the Quebec market. To access relevant information that applies to the Quebec market, please click here.