USCIS Issues Policy Memo Enforcing Removal Proceedings for Denied Petitions

Last week the United States Citizenship and Immigration Services (USCIS) released a new policy memorandum 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.

Importantly, the memo exempts certain individuals including beneficiaries of employment-based petitions, but it does not exempt dependent family members.

The memorandum also broadens USCIS’s authority to begin removal proceedings for certain foreign nationals with previous criminal charges, arrests, or convictions.

It is effective immediately.

How will USCIS implement this policy?

Under this policy, USCIS will initiate removal proceedings against a foreign national by issuing a Notice to Appear (NTA) after it has denied an application for an immigration benefit, if the foreign national no longer has a lawful basis to remain in the United States.

The issuance of a Notice to Appear (NTA) commences removal (deportation) proceedings in immigration court. Those who are issued an NTA must appear on the scheduled date before a judge who will decide whether the foreign national has a lawful basis to remain in the country or should be removed.

Traditionally, Notices to Appear (NTAs) have been issued by Immigration Customs and Enforcement (ICE) and Customs and Border Protection (CBP) officials.

However, USCIS also has the authority to issue NTAs in limited circumstances defined in policy memorandums issued by the agency.

The new 2025 memorandum broadens USCIS’ authority to issue NTAs to a larger pool of individuals when compared to the Biden administration, which directed USCIS to initiate removal proceedings in a narrower range of cases.

Under Biden-era policies, USCIS directed NTAs to be issued after an unfavorable decision only as required by regulation or statute, such as for those receiving denials of Form I-751 or I-829 Petition to Remove Conditions on Residence.

Who will be impacted?

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 residence (green card) may have a higher chance of being issued a Notice to Appear (NTA) if their application is denied by USCIS and they have no lawful basis to remain in the country.

According to the policy guidance, an NTA will be issued by USCIS where:

they have 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 I-94 status has expired by the time their benefit request is denied and have no authorization to remain in the United States.

Beneficiaries of Employment-Based Petitions

One important exception made in the policy memo is for beneficiaries of employment-based petitions. For such individuals, USCIS will not issue NTAs unless the beneficiary is also the signatory on a Form I-129 temporary worker petition (such as when the sponsored foreign worker is the owner of the employer).

While 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 can receive NTAs under the policy, if their I-539 application is denied and they no longer have a valid underlying immigration status.

This means that USCIS can initiate removal proceedings against spouses and child applicants, but not principal beneficiaries of employment-based petitions.

Criminal Issues

Under the policy memo, USCIS will continue referring cases involving criminal conduct, arrests, or convictions to ICE for enforcement action, including NTA issuance.

USCIS will also 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 certain provisions of immigration law.

Under Biden, 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 Remains the Same

The 2025 policy memo does not change previous policies associated with the 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.
Existing regulatory rules that restrict issuance of NTAs to DACA requestors after denial of a DACA request.

What Happens Next?

USCIS will continue to have the discretionary authority to not issue an NTA, but this authority may only be made on a “case-by-case” basis in consultation with a supervisor in “very limited and compelling circumstances.”

It is unclear the extent to which the Trump administration will strictly enforce and implement this new 2025 policy memo. Previously, the administration made changes to its NTA policy, but these policies were not fully implemented by the agency.

What is clear is that applicants must work closely with their immigration attorneys to maintain an underlying immigration status where possible.

It is very important for individuals to submit their applications as early as possible to minimize the risk of a denial being issued after their I-94 has expired.

Precautions should be taken for cases that may have a higher change of being issued an NTA following a denial, such as Form I-539 application to change or extend nonimmigrant status, or a Form I-485 application to adjust status to U.S. permanent residence (green card).

Working with an attorney will help you carefully assess the likelihood of success of a Form I-539 or I-485 petition to avoid negative outcomes. It is also important to strategize a plan with your attorney in case of NTA issuance to navigate the removal process, and any relief you may be eligible to receive.

Individuals with criminal charges, arrests, or convictions in their history MUST consult with an experienced immigration attorney as soon as possible.

For more information about this policy memo, please click here.

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