On February 28, 2025, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum reinstating the issuance of Notices to Appear (NTAs) in certain cases involving inadmissible and deportable noncitizens. This policy, reminiscent of the 2018 NTA guidance, expands USCIS’s authority to refer individuals for removal proceedings in employment-based, fraud/misrepresentation, and Temporary Protected Status (TPS) cases. Below, we break down the key components of this policy and its impact on foreign nationals and employers.

What Is an NTA?

A Notice to Appear (NTA) (Form I-862) is a charging document that places a noncitizen into removal proceedings before an Immigration Judge. The NTA outlines the factual allegations and legal charges against the individual, requiring them to appear in Immigration Court to contest or respond to their removal case.

NTAs are issued in various scenarios, including but not limited to:

• Violations of immigration status or unlawful presence;
• Criminal convictions or security-related concerns;
• Denials of immigration benefits that leave the applicant without legal status;
• Findings of fraud, misrepresentation, or other inadmissibility grounds.

Once an NTA is issued, the case moves to the Executive Office for Immigration Review (EOIR), where the individual will be required to present their case before an Immigration Judge. Failing to appear at a scheduled hearing can result in an automatic order of removal.

NTAs serve as a critical tool for immigration enforcement, ensuring that those who no longer have lawful status are brought before a judge for due process. However, the issuance of an NTA does not necessarily mean that the individual will be removed from the United States. In many cases, foreign nationals may have valid defenses to removal, including adjustment of status, cancellation of removal, or asylum claims. This underscores the importance of obtaining legal representation as soon as an NTA is issued.

The 2018 NTA Policy and Its Aftermath

In 2018, USCIS implemented a policy to issue NTAs in broader categories of cases, including employment-based denials. However, in practice, NTAs for employment-based denials were rarely, if ever, issued. The policy primarily affected individuals with underlying immigration violations, including fraud, unlawful presence, and national security concerns.

The 2018 guidance led to significant uncertainty, as many feared that even routine denials in employment-based cases would trigger removal proceedings. However, USCIS later clarified that employment-based petitions, such as H-1B and EB-2/EB-3 denials, would not automatically result in an NTA unless there was an underlying immigration violation.

This lack of enforcement led many to assume that employment-based denials carried minimal risk of removal proceedings. The 2025 update aims to correct this by explicitly stating that NTAs may be issued for employment-based denials when the beneficiary is found to be out of status.

Key Changes in the 2025 NTA Policy

The 2025 policy expands the circumstances under which NTAs may be issued, including:

• Employment-based cases where the beneficiary is out of status or removable
• Fraud and misrepresentation cases, even without a formal finding of fraud
• Temporary Protected Status (TPS) denials and revocations
• Criminal and national security cases

This policy marks a significant shift toward enforcement and removal proceedings, underscoring the need for meticulous compliance in employment-based and humanitarian immigration cases.

When Can an NTA Be Issued for Employment-Based Cases?

Under the 2025 policy, USCIS may issue an NTA in employment-based cases when:

• The beneficiary of an employment-based petition is removable due to an unfavorable decision on the petition;
• The beneficiary is unlawfully present or otherwise removable;
• The beneficiary is the signatory on the Petition for a Nonimmigrant Worker (Form I-129) in cases where self-petitioning is permitted (e.g., E-1/E-2 investors, H-1B owner-beneficiaries, O-1 individuals with extraordinary ability).

A reading of this indicates all three must be present, however, it is likely intended to apply to all employment-based cases where there is unlawful presence or removability.

Employers and foreign workers should be aware that simply having a petition denied does not automatically trigger an NTA unless there is an additional reason for removability, such as unlawful presence beyond a permissible grace period.

Employers must also be mindful of compliance with the Department of Labor (DOL) wage requirements, as violations in this area could be seen as contributing to an NTA issuance. Additionally, foreign workers should be proactive in checking their I-94 expiration dates to ensure they remain in status while awaiting adjudication of petitions.

NTAs for Fraud and Misrepresentation

Fraud or misrepresentation cases are a major focus of the new policy. USCIS will issue an NTA if:

• The agency determines that the applicant engaged in fraud or willful misrepresentation, regardless of whether an actual finding of fraud was made. This means that they do not have to conclusively establish fraud or misrepresentation if the system indicates it is prevalent;
• The petition or application is denied for fraud, lack of prosecution, or withdrawal when there are fraud indicators (withdrawal alone does not prevent an NTA from being issued); or
• An approval is revoked and there is evidence of fraud in the record.

It is important to note that an NTA may be issued even if there is no explicit finding of fraud or misrepresentation by DHS. This means that even voluntary withdrawals or abandoned applications could lead to removal proceedings in certain circumstances.

NTAs in Temporary Protected Status (TPS) Cases

The new memo reinforces that an NTA will be issued in TPS cases where:

• An initial TPS application or re-registration is denied;
• TPS is withdrawn and the individual lacks other lawful status.

However, USCIS retains discretion to delay or withhold an NTA if another law enforcement agency requests it due to an ongoing investigation.

TPS beneficiaries should be aware that loss of status under this policy could lead to expedited removal in certain cases. Individuals at risk should consider alternative immigration pathways, including family-sponsored petitions or employment-based options, if applicable.

Broader Implications of the 2025 NTA Policy

The expansion of NTAs to employment-based denials represents a significant development in immigration enforcement. In light of this change, foreign nationals and employers must be proactive in ensuring compliance with all relevant laws and regulations.

For individuals who receive an NTA, it is important to understand that there are often legal remedies available. Hiring an experienced immigration attorney can help assess the best options for relief, whether through adjustment of status, cancellation of removal, or other available defenses.

Conclusion: What to Expect Moving Forward

The 2025 NTA policy signals a shift toward stricter enforcement measures in employment-based and fraud-related cases. While this policy reintroduces elements of the 2018 NTA guidance, its practical implementation remains to be seen. Employers and foreign nationals should remain vigilant, ensuring compliance with all immigration requirements to mitigate the risk of removal proceedings.

With increased scrutiny, those affected must stay ahead of policy changes and prepare accordingly. Seeking professional legal assistance early can be the key to avoiding unexpected legal complications.

For further guidance on NTAs and employment-based immigration, contact Reddy Neumann Brown PC. Staying informed and proactive is the best defense against unexpected immigration challenges.

By: Steven Brown 

Steven A. Brown is a Partner at Reddy Neumann Brown PC, where he leads the firm’s Litigation Team, addressing delays and denials of immigration benefits, FOIA requests, and policy and regulatory challenges. Steven is dedicated to delivering practical and effective solutions for clients facing unreasonably delayed or unlawfully withheld immigration benefits, including Employment Authorization Documents (EADs), advance parole, green cards, 221(g) decisions, EB-5 delays, and other immigration-related matters. His litigation efforts were instrumental in Shergill, et al. v. Mayorkas, a landmark case that led to the U.S. government recognizing that under the INA, L-2 and E visa spouses are authorized to work incident to their status, eliminating the need for separate EAD applications. This case has transformed work authorization for thousands of families across the United States.