On February 28, 2025, USCIS issued a new set of policies regarding removal (deportation) proceedings:

USCIS Policy Memorandum  PM-602-0187, Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens 

These new policies target the removal of foreigners from the U.S. Title IV on page 5 of the memo provides:

“USCIS will issue an NTA where, upon issuance of an unfavorable decision on a benefit request, the alien is not lawfully present in the United States.“

An NTA is a notice to appear in immigration court for removal proceedings. There may be defenses to removal. However, it’s best to avoid removal proceedings if possible.

A question arises: What is, “an unfavorable decision on a benefit request“?

8 U.S. Code § 1572(2) defines immigration benefit application:

“The term ‘immigration benefit application’ means any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act.”

Immigration regulations further define an immigration benefit under 8 CFR § 1.2: 

“Benefit request means any application, petition, motion, appeal, or other request relating to an immigration or naturalization benefit, whether such request is filed on a paper form or submitted in an electronic format, provided such request is submitted in a manner prescribed by DHS for such purpose.”

Petitions and Applications

All family based immigration filings require two parts: a petition and an application. Employment immigration benefits are affected as well. But, the focus of this page is on family immigration for the sake of brevity.

Petitions:  With few exceptions, all family based requests begin with a petition filed by either a US citizen or lawful permanent resident green card holder (“LPR”). A US petitioner seeks to qualify himself or herself as a viable sponsor of a foreigner based on the family relationship. See, 8 USC 1154(a).

Applications: Foreign family members must also “apply” for a US immigration benefit. Those foreign family members who are inside the U.S. would apply for adjustment of status pursuant to  8 USC 1255, a separate statute from the petitioner’s requirements.

This USCIS policy memorandum does not affect those who are consular processing because the foreign family member is already outside the U.S. or plans to leave the U.S. to complete visa processing at a U.S. consulate abroad.

I-485 Applications

The concern is for those foreign family members who are inside the U.S. and apply for adjustment of status using form I-485, but are denied. The new policy memorandum in essence directs USCIS officers to issue an NTA to those foreign beneficiaries who are denied adjustment of status under form I-485. 

In many cases it is likely a good idea to not file an I-485 application to adjust status unless you are reasonably certain it will be approved. Likewise, it may be best to withdraw a pending I-485 application before it is denied if the chances of approval are slim.

For example, it may be best not to maintain an I-485 application to adjust status when the Adam Walsh Act (“AWA”) applies due to the high rate of petition denials. By comparison, it may be worth allowing stateside adjudication to proceed in the case of an I-601 hardship waiver for anything other than entry without inspection if the I-601 hardship factors are strong; denial of an I-601 waiver application is appealable to the Board of Immigration Appeals.

It is possible to file only the U.S. petitioner’s I-130 marriage petition and wait for petition approval before having the foreigner apply to adjust status in the U.S. As such, it may make sense to file and maintain an I-130 petition by a US citizen or LPR, and hold back on filing the foreigner’s I-485 application to adjust status in those cases where the chance of petition approval is not strong. Likewise, it is important to ensure that any self-petition or adjustment application filed by a foreigner be compelling because the risk of receiving an NTA after denial is now heightened.

I-130 Petitions

There is a risk that USCIS will interpret a petition denial as a basis to issue an NTA to a foreign beneficiary who resides in the U.S. even if the beneficiary did not file an I-485 application to adjust status. However, 8 U.S. Code § 1572(2) reads, in short, “The term ‘immigration benefit application’ means any … petition to confer … any status granted under the Immigration and Nationality Act [ 8 U.S.C. 1101 et seq.].” [Emphasis added] A petition filed by a US citizen or LPR does not confer any status to a foreign beneficiary under the INA. The US citizen and LPR already have status as either a citizen or LPR. An attempt to obtain any status relates to the foreigner’s I-485 application, not the petitioner’s I-130 petition.

But, compare the regulatory guidance under 8 CFR § 1.2:  “Benefit request means any … petition … or other request relating to an immigration … benefit ….” A petition indirectly relates to an immigration benefit for a foreign family member. Also, the USCIS Policy Memo states that an NTA will be issued, “where … the alien is not lawfully present in the United States,” and the benefit request is denied.

Conclusion

It is unclear to what extent, if any, regulation 8 CFR § 1.2 interprets 8 U.S. Code § 1572(2) to include a petition that relates to a foreigner’s immigration benefit. Strictly speaking, the petition is filed for the petitioner’s benefit, and indirectly for the foreigner’s benefit, because the petitioner is seeking to classify themself as a qualifying relative of the foreign beneficiary. The foreign family member may not agree or may not be interested in an immigration benefit; they may change their mind about immigration. The foreign beneficiary’s interest is implied, but separate.

Finally, filing or maintaining an I-485 application to adjust status stateside is, by definition, a declaration to USCIS that the foreigner is inside and seeks a benefit. A denial of that I-485 application should trigger the NTA directive under the USCIS policy memorandum. The same is not true of an I-130 petition. As a practical matter, the denial of a petitioner’s I-130 does not obviously call to mind issuance of an NTA to the beneficiary who may or may not be inside the U.S. I-130 petitions must be filed by US petitioners whether or not the foreigner is inside the U.S. Many foreigners consular process.

As such, there is no bureaucratic mechanism for a denied I-130 petition–no I-485 application filing–that triggers the new policy directive. USCIS would need to create a mechanism relative to the I-130 petition to take the extra step of issuing an NTA to the foreign beneficiary who did not file for an immigration benefit.

See also our FAQs on this topic.

It is important to stay up to date on immigration process, especially with the new Administration. Immigration is ever-evolving, but is currently being accelerated.

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