USCIS Notice to Appear (NTA) Memo Could Result in Harsh Consequences

On 28.Feb.2025, the U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum that dramatically expands the circumstances under which the USCIS intends to issue a notice to appear (NTA), or refer cases to the U.S. Immigration and Customs Enforcement (ICE) for NTA issuance. An NTA is a charging document that is filed with an immigration court to commence removal (i.e., deportation) proceedings against a foreign national. Most notably, this policy memo threatens to issue an NTA to anyone who is in the U.S. legally at the time an application or petition requesting an extension or change of status is filed, but whose status has expired by the time the status request is denied.

Background: Notice to Appear

As mentioned above, an NTA is a charging document that is issued to foreign nationals who are deemed “removable” from the United States. It is analogous to a formal complaint in the civil law context and essentially is notice of the start of formal court proceedings. When one receives an NTA, the individual must appear before an immigration judge. The judge, after reviewing all the evidence and the law, determines whether the person should be removed from the United States. The foreign national, or the lawyer representing the individual, has the opportunity to present arguments before the court regarding eligibility for relief from removal and why they should be allowed to remain in the United States.

Fighting NTA Risky, but Quickly Leaving U.S. Automatically Leads to Penalties

Fighting the case in court carries risks of its own, however. In most situations, the foreign national continues to accrue unlawful presence while waiting for the court date and is ineligible for work authorization during this period. Further, if one loses in court and is removed from the U.S., at a minimum, they generally become subject to a 5-year bar on reentry to the United States. The same penalty typically applies if the individual leaves the U.S. rather than attending the court hearing, which is a process commonly referred to as self-deportation.

Negotiating for Voluntary Departure

Rather than fighting the matter in court, one may negotiate with the U.S. Department of Homeland Security (DHS), typically to request voluntary departure. By agreeing to voluntary departure, one agrees to leave the United States and forgo any right to fight the charges in court. The benefit is that it may help the individual avoid many of the costs and long-term consequences of being ordered removed from the U.S.

Trump Issued Similar Memo During First Term

During Trump’s first term in office, a similar memo was issued. Despite the memo, though, the USCIS did not routinely issue NTAs. It remains to be seen, however, whether the Administration will follow through with the threat of having the USCIS routinely issue NTAs.

Conclusion

This new memo is worth our concern, but the hope is that the USCIS will not start issuing NTAs on a regular basis. For the time being, however, applicants should consider filing early, when possible, to avoid the expiration of an I-94 after the case has been filed. It also would be prudent to speak with an immigration attorney to consider possible options to mitigate risks.

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