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A new USCIS memo expands the agency’s authority to initiate deportation proceedings by issuing Notices to Appear (NTAs) against individuals whose immigration benefit applications are denied and who are no longer lawfully present in the US. Do not hesitate to talk to our green card lawyer in New York if this change affects you.

USCIS will now issue NTAs after certain denials

When USCIS denies an application — such as Form I-539 or Form I-485 — and the applicant no longer holds valid status, the agency will now issue an NTA. This NTA is the formal document that initiates removal (deportation) proceedings in immigration court. Individuals who receive an NTA are required to appear before an immigration judge, who will then determine whether they are eligible to remain in the US or will be ordered deported.

Previously, the primary responsibility for initiating removal proceedings fell to Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP). While USCIS has historically had the authority to issue NTAs in certain limited circumstances, this new policy expands that authority by allowing USCIS to directly place more individuals into removal proceedings.

The new policy affects more applicants than before

The new memo makes a clear shift from Biden-era policies. Under the prior administration, USCIS issued NTAs only when required by law or for specific high-priority cases. Now, the agency can initiate removal proceedings more broadly — including after denials of routine applications when the applicant lacks valid immigration status.

Employment-based beneficiaries are mostly exempt — but not their families

Principal beneficiaries of employment-based visa petitions will generally not receive NTAs after a denial unless they personally signed the petition (such as when they are also the employer).

However, this exemption does not extend to their dependents. Therefore, if a dependent spouse or child submits a Form I-539 and USCIS denies it, they may be placed into removal (deportation) proceedings if their underlying nonimmigrant status has expired. This policy creates a situation where families of employment-based visa holders are at risk of removal even if the principal beneficiary remains protected.

USCIS will act on criminal histories

The new policy reinforces USCIS’s role in initiating NTAs when a foreign national has a criminal record. The agency will continue referring cases involving arrests, charges, or convictions to ICE. But now, it may also issue NTAs directly if the person is removable and not subject to mandatory detention.

Previously, such cases were often passed to ICE for further action. This change reflects a shift in who initiates the process—and how quickly removal proceedings begin.

Some rules and exemptions remain in place

Despite the expanded authority, USCIS will still follow earlier rules for NTA issuance in specific cases:

• Applicants denied under statutory or regulatory requirements (like Form I-751 or I-829) will still receive NTAs.
• Cases involving fraud or naturalization issues will remain eligible for NTA issuance.
• USCIS retains discretion in issuing NTAs in other situations, such as abandoned I-90 applications or expired parole.
• DACA requestors remain protected under existing rules that restrict automatic NTA issuance.

Discretion will be limited going forward

USCIS will still have limited discretion to not issue NTAs, but only under rare and compelling circumstances. Officers must consult with a supervisor before making exceptions. This raises the stakes for applicants who might have previously relied on procedural flexibility.

How to protect yourself under this policy

Anyone filing Form I-539 or I-485 should submit their applications as early as possible —well before their I-94 expires. Losing status before a decision is made increases the risk of receiving an NTA.

It’s also prudent for applicants to work with an experienced green card lawyer in New York to assess risk. An attorney can evaluate the strength of a case and recommend strategies to preserve legal status, as well as prepare a response plan in the event of a denial and NTA issuance.

If you have a criminal history, including arrests or charges, contact a green card lawyer in New York immediately. Your situation could trigger removal proceedings even if your immigration status is otherwise valid.

Contact Berd & Klauss, PLLC, for help

If your immigration application has been denied — or you’re worried about a possible denial — reach out to Berd & Klauss, PLLC at 212-461-7152 or email info@berdklauss.com. Our green card lawyer in New York can help you understand your rights and protect your future in the US.