Under the Trump administration, some changes are more subtle than others and almost fly under the radar. This policy is not something you will read about on the news, yet its implications are far reaching, especially for employment-based applicants. On February 28, 2025, the U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum detailing updated guidance on the issuance of Notices to Appear (NTAs).
An NTA is a formal charging document used in U.S. immigration law to initiate removal proceedings against a noncitizen. The NTA serves as a notification to the noncitizens that they must appear before an immigration judge to respond to the charges of removability. The issuance of an NTA officially places the case under the jurisdiction of the immigration court, marking the commencement of the removal process. This new memo builds upon previous guidance, including a similar policy issued during the Trump administration in 2018.
Key Takeaways
- General Policy: USCIS will issue an NTA if a benefit request is denied, and the noncitizen is not lawfully present or is otherwise removable. This policy removes previous exemptions for certain classes of noncitizens, potentially increasing enforcement actions.
For example, someone who files an H-1B extension that is denied, and their I-94 is expired could now be issued an NTA.
- Criminal Cases: USCIS will refer cases involving criminal history to Immigration and Customs Enforcement (ICE). NTAs will be issued for noncitizens arrested, charged, or convicted of a criminal offense if their benefit request is denied or withdrawn, provided they are not subject to mandatory detention. Criminal charges must be supported by evidence in the record.
- Fraud and Misrepresentation: NTAs will be issued in cases of substantiated fraud or material misrepresentation, even if the petition is denied for other reasons. The fraud charge must be included in the NTA if supported by evidence.
- Specific Situations: NTAs may be issued in various scenarios, including:
- Denial of employment-based petitions where the beneficiary is unlawfully present and is the signatory on the I-129 (For example, an L-1A or E-2 where the beneficiary is also the signatory).
- Naturalization applicants who are deportable, e.g., an applicant convicted of a deportable offense after obtaining their green card.
- Requests for NTAs made in writing by noncitizens.
- Expedited removal cases referred for credible fear screenings.
- Affirmative asylum applicants whose proceedings were dismissed or terminated.
Conclusion
The revised USCIS policy on Notices to Appear (NTAs) highlights the critical need for meticulous preparation and proactive management of immigration cases. While it remains uncertain whether the administration will apply this memo to issue NTAs in employment-based cases, such as after the denial of an H-1B petition when the employee’s I-94 has expired, the language of the memo suggests this is a possibility.
To prevent complications, it is advisable to file extensions, such as for H-1B visas, well before the I-94 expiration date. This strategy provides time to re-file if necessary and minimizes the risk of unlawful presence.
In the event of a case denial, explore all available relief options, including appeals and motions to reopen or reconsider. USCIS has not clarified whether it will postpone issuing an NTA until after the expiration of any relevant USCIS appeal period.
It is crucial to keep your address current with USCIS to ensure you receive important notices, including NTAs. For further inquiries, please contact PLG Partner at cprescott@patelelgal.com.