The following is not legal advice. It is intended as general information only and does not apply to your individual case.

On February 28, 2025, USCIS issued a new set of policies regarding removal (deportation) proceedings. See, USCIS Policy Memorandum  PM-602-0187, Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens

Here is a brief analysis of how the new USCIS policy may affect the denial of immigration benefits for those foreigners who are inside of the U.S.:

Referral to Immigration Proceedings for Applications Denied by USCIS

This policy change does not affect foreign family members who are outside of the U.S. 

A primary concern is with respect to the foreigner’s application form I-485, application to adjust status stateside. A problem arises when the chances of approval of form I-485 is not strong. By comparison, there is little concern for those cases wherein the I-485 will likely be approved. You need to consider your individual circumstances.

What is the difference between an I-130 and I-485?

Please review our website page Referral to Immigration Proceedings for Applications Denied by USCIS. An I-130 petition filed by a U.S. citizen or green card holder is intended for the benefit of the petitioner. The I-485 application to adjust status is filed by a foreign family member who is inside the U.S. for the benefit of the foreign family member.

What should be filed with USCIS when my immediate family member is in the U.S.?

It is likely acceptable for the U.S. petitioner to file an I-130 petition to start the immigration process. In cases where an I-485 application to adjust is not clearly approvable, you might wait for I-130 approval before filing the I-485 application to adjust in appropriate circumstances. 

The I-485 application puts the foreign applicant into a pending lawful status and avoids unlawful presence. The I-130 does not have that effect. A pending I-130 does not stop unlawful presence of the foreigner in the U.S.

Moreover, I-765 work and I-131 international travel benefits are tied to the I-485 application to adjust status. So, it is not possible to file for work authorization or international travel benefits if the foreigner’s I-485 application to adjust status is not filed.

What should I do if the I-485 application has been denied?

The USCIS Policy is too new to know when USCIS will implement this policy to issue a Notice of Intent to Deny, and whether it will be issued to applications denied prior to the date of change in policy, which was February 25, 2025.

It may be a good idea to refile an I-130 petition at some point. In the event an NTA is issued, it is possible in some cases to argue in immigration court to delay removal until the new petition is adjudicated. It may also be advisable to refile the I-485, depending on the reason it was denied.

Change of Address:  If a foreigner is no longer in immigration process with USCIS and you do not intend to file any further, consider moving residence addresses, but still monitor a mailing address. An NTA that is addressed to the last known address may be proper notice to appear in immigration proceedings. Whether or not an NTA is correctly served largely depends on whether it lacks hearing time and place information. A defective NTA that does not give correct instructions may be grounds for reopening or rescinding an in absentia order, which is an order that is issued when the foreigner does not appear in court.

ICE may arbitrarily appear at a residence address, depending on resources in the local community. The new policy will be overwhelming for ICE. The risk of ICE appearing at your home is slim. But, if you have a chance of moving to another address but still receive an NTA if one is issued, this can help you sleep with less stress.

Should I withdraw my I-485 application to adjust status if it is still pending at USCIS?

AWA Matters:  You should strongly consider withdrawing an I-485 application to adjust status if it has not yet been adjudicated. The USCIS Policy seems clear. USCIS “will” issue an NTA if a benefit request is denied. We don’t yet know how this will play out at USCIS, especially given that USCIS allows for resubmission once denied because the foreigner is not at fault. You might consider allowing the I-130 petition to proceed to seek approval of a no risk determination under the AWA.

What happens to work authorization?

Work authorization is filed on form I-765. That form may only be tied to an I-485 submission. It is not an independent filing. So, if the I-485 is denied or withdrawn, the work authorization is denied as well. Normally, USCIS will give notice of denial of work authorization.

It may still be possible to work without approved work authorization. If the foreigner remains in the U.S. without lawful status, it is generally no worse if the foreigner works without authorization as it already is to be without status so long as the foreigner does not claim to be a U.S. citizen or present false documentation in order to work. Penalties for unauthorized work are normally placed on the employer, not the employee. 

In some cases, it can be possible for the foreigner to create a corporate shell and work as an independent contractor without risk to the employer.

Does the policy “require” USCIS to send an NTA with every denial, or does it “just” give them the option to do it? Could they still choose to deny it without?

The policy states that “USCIS will issue an NTA”. It also states that USCIS will exercise discretion in some cases, but it appears to be limited.

Do we know if USCIS will still follow the protocol of first sending a Request for Evidence or Notice of Intent to Deny, or can they just go straight to sending an NTA? 

There needs to be a basis for denial. So, an RFE or NOID will be issued first in all likelihood to allow the petitioner to address USCIS concerns.

How does the NTA process work? 

An NTA that will assign the foreign beneficiary to a local immigration court. The first question is whether the NTA is valid or not, depending on what the NTA says. There is more than one court hearing and the timing varies. Courts are backed up, sometimes for years. You may have defenses to removal.

Work authorization is denied at the time an I-485 application to adjust is denied. Whether or not one can find work or continue working is a separate issue. Work as an employee would be unauthorized. 

If ICE shows up with a warrant, is there anything specific I should be aware of? 

If an ICE agent shows up at your home or in another private location, you do not need to grant them entry unless they have a judicial warrant (signed by a judge). You do not even need to open the door. Opening the door gives ICE a semi-invitation to figure out how to get into your home. Speak with them through a window. 

An administrative warrant (such as one issued by the Department of Homeland Security but not signed by a judge) does not allow an ICE agent to enter a private location like your home. Generally, you should try not sign anything until you have consulted with an attorney. 

Who do I contact if I receive an NTA or ICE shows up?

If you are given an NTA, you’ll likely want to work with a removal defense attorney who is local to your area and who can appear with you in court. Fee estimates will depend on the attorney’s rates and what strategy they may recommend based on your particular circumstances. Of course, we can give additional recommendations to our clients.