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

By: Andrea Mora-Alcauter

United States Citizenship and Immigration Services (USCIS) has issued a new policy memorandum (PM-602-0187) that expands the agency’s authority to initiate removal proceedings against foreign nationals whose applications are denied while they are no longer in lawful status. This change aligns with the Trump administration’s broader enforcement strategy, signaling a shift from the Biden administration’s more limited approach to Notices to Appear (NTAs).

While the policy explicitly exempts most employment-based petition beneficiaries, it does not extend those protections to their dependent family members. Additionally, USCIS now has more discretion to issue NTAs to individuals with criminal histories, arrests, or suspected fraud, making it critical for applicants to be aware of the heightened risks.

The policy is effective immediately, and while its full implementation remains to be seen, one thing is clear: individuals applying for immigration benefits must take proactive steps to maintain status and avoid falling into removal proceedings.

USCIS Authority to Issue Notices to Appear (NTAs)

An NTA is a formal charging document that places a foreign national in removal proceedings before an immigration judge. Traditionally, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) were responsible for issuing NTAs, particularly in cases involving criminal activity, fraud, or national security concerns.

However, USCIS has long had the authority to issue NTAs in certain cases, such as:

• Statutory and regulatory denials (e.g., I-751 and I-829 denials);
• Fraud and misrepresentation findings where the individual is deemed removable; and
• Criminal convictions that make the applicant deportable.

Under the Biden-era policies, USCIS issued NTAs only when required by regulation or statute and typically referred discretionary cases to ICE for enforcement. The new 2025 policy memorandum expands this authority, making it more likely that individuals with denied applications and no lawful status will be placed directly into removal proceedings by USCIS rather than ICE.

Who Is Impacted?

Under this policy, USCIS may issue an NTA after denying an application if the individual has no legal basis to remain in the United States. This includes:

• Form I-485 applicants adjusting to permanent residence (green card);
• Form I-539 applicants requesting a change or extension of nonimmigrant status; and
• Foreign nationals whose I-94 has expired by the time their application is denied.

An NTA initiates removal proceedings, meaning the individual will be required to appear in immigration court, where an immigration judge will determine whether they have a legal basis to remain in the country or face deportation.

Employment-Based Petition Exception – With a Catch

Most employment-based petition beneficiaries are not automatically subject to NTA issuance under this policy. However, there are exceptions:

• Owner-beneficiaries of Form I-129 petitions (such as E-1, E-2, H-1B, or O-1 visa holders who own the sponsoring company) may still receive NTAs if their petition is denied and they are out of status.
• Dependent family members (spouses and children on I-539 applications) are not protected under this policy. If their change or extension of status is denied, and they have no other lawful status, USCIS may issue an NTA.

This means that while a principal H-1B or L-1 beneficiary may not be targeted, their spouse or child on an H-4 or L-2 visa could still be placed in removal proceedings if their extension or change of status is denied.

Criminal and Fraud-Related Cases

USCIS is also taking a more aggressive approach toward cases involving criminal issues and fraud. Under the new policy:

• USCIS may issue an NTA directly (rather than referring the case to ICE) if an applicant has been arrested, charged, or convicted of a crime and is otherwise removable.
• USCIS will issue an NTA in fraud cases where:
• There is a finding of material misrepresentation.
• The applicant is removable, even if fraud was not the primary reason for the denial.

Under prior Biden-era policies, USCIS typically referred these cases to ICE, leaving the final decision on removal proceedings to immigration enforcement officers. The new guidance removes that buffer, giving USCIS more direct authority to initiate removal proceedings.

What Hasn’t Changed?

Despite the expanded policy, several aspects of USCIS’s existing NTA issuance guidelines remain unchanged including:

• NTAs are still required by law for individuals receiving denials of Form I-751 and I-829 (removal of conditions on residence).
• DACA applicants remain protected—denials of DACA requests will not automatically trigger NTAs.
• USCIS still has some prosecutorial discretion, but it can only decline to issue an NTA in “very limited and compelling circumstances” and only with supervisory approval.

What This Means Going Forward

The immediate question is how aggressively the Trump administration will enforce this policy. While previous efforts to expand NTA issuance under the first Trump administration were not fully implemented, this latest policy memorandum gives USCIS clear authority to initiate removal proceedings in a much broader range of cases.

For foreign nationals and their employers, this makes immigration strategy more important than ever. A denied application now carries significantly higher stakes, particularly for dependent family members, individuals with expired status, and those with any history of criminal charges or suspected fraud.

Key Takeaways

• File applications early to avoid status gaps.
• Know the risks—any denial could now trigger removal proceedings.
• Maintain backup options—where possible, individuals should avoid falling out of status entirely.
• Work with an immigration attorney—careful planning is now essential, especially for at-risk applicants.

The latest expansion of USCIS’s NTA authority signals a more aggressive approach to immigration enforcement, particularly for individuals with expired status, dependent family members, and those with criminal or fraud-related issues. While employment-based petition beneficiaries are largely protected, the impact on their dependents should not be overlooked.

Ultimately, the full impact of this policy will depend on how aggressively it is enforced. But one thing is clear: foreign nationals can no longer afford to take a wait-and-see approach, the margin for error is getting smaller. Now more than ever, strategic planning and legal guidance will be key to stay ahead of immigration policy changes while navigating an increasingly complex immigration landscape.

Conclusion

For more detailed information on how these policy changes may impact you, your relatives, and employees please reach out to your trusted immigration professionals at Chugh, LLP.