Meaning of Notice to Appear (NTA) and the Changed Structure After the 2025 Policy Change
On February 28, 2025, U.S. Citizenship and Immigration Services (USCIS) announced a policy memo significantly expanding the scope of issuing Notices to Appear (NTAs—notices to appear in immigration court, which are official documents initiating deportation proceedings) when immigration benefit applications are denied. Last month, a separate policy was added that shifts the review standard for adjustment of status to be more discretionary. This creates an environment where it is increasingly important to check your immigration status and past record before applying for immigration benefits.
Rejection can be the start of the deportation process.
“The USCIS February 28, 2025, Policy Alert stipulates that when an immigration benefit application is denied, applicants who are not in lawful status will, in principle, be issued a Notice to Appear (NTA).”
Receiving a Notice to Appear (NTA) initiates removal proceedings in the Executive Office for Immigration Review (EOIR—the court system within the Department of Justice that handles immigration cases). This is not an appeal of an immigration agency's decision. It is a separate court proceeding where a government attorney seeks deportation and an immigration judge makes a decision. Once you are in this process, it is difficult to get out on your own.
The core of this policy is timing. Even if you were a legal resident at the time of application, if you are found to be out of status at the time of the denial decision, you will be issued an NTA. For example, this means that if you have already submitted an application for adjustment of status after your non-immigrant visa expired, and that application is denied, it could lead to the issuance of an NTA.
Withdrawing your application may not keep you safe. If there are suspicions of fraud or material misrepresentation, an NTA may still be issued even after withdrawal.
Once deportation proceedings begin, prompt action is necessary. Failing to appear on your court date can result in a deportation order in absentia. An in absentia deportation order legally ends your stay in the United States and disqualifies you from most relief applications for ten years, significantly restricting re-entry.
The notice to appear states the reasons for removal alleged by the government, as well as the address and date of the immigration court you must attend. In some initial issuance stages, the date may be left blank when the document is sent. Therefore, you must check the court information and date as soon as you receive the document. You should not ignore or neglect it, whether you understand the contents or not. From that point on, immigration court proceedings are underway, so the first thing you should do immediately upon receiving the document is to have it reviewed by an attorney experienced in immigration court.
Employment-based petition — Beneficiary and dependent family members have different locations
“According to USCIS policy, beneficiaries of employment-based petitions (petitions filed by employers) are, in principle, exempt from the NTA issuance policy. However, this exception does not apply if the beneficiary is also the signatory of the petition.”
In employment-based immigration proceedings, if the employer files the petition, the beneficiary (employee) is excluded from the general scope of the NTA policy. While this is a common distinction in immigration proceedings, it constitutes a significant dividing line under this policy. However, this exception is not unlimited. Two distinct scenarios must be distinguished.
First, there are cases where the beneficiary is also the petitioner. For example, if a beneficiary files an employment-based immigration petition through a company in which they are a major shareholder or an executive, they are effectively both the employer and the employee. In such cases, the beneficiary exception does not apply, and the standard NTA policy applies as is.
Second, accompanying family members (spouse, minor children) are not included in the exceptions. Even if the primary applicant qualifies for beneficiary exceptions, if accompanying family members are applying for status adjustment separately, those family members may be subject to the general NTA policy.
This is a crucial practical consideration. In employment-based cases, if family members are going through the immigration process together, you must review the dependent family members’ immigration status and timing of their applications separately from that of the principal applicant.
Ultimately, the most certain way to reduce the risk of an NTA is to maintain legal resident status. As long as your status is maintained, you are not subject to an NTA, even if your application is denied. Managing your application to avoid missing the renewal period for your employment visa or creating gaps between statuses forms the foundation of your immigration benefits application strategy.
Criminal record and past history—should be checked first before applying
“The USCIS policy memo stipulates that an NTA must be issued when immigration benefits are denied or revoked due to a criminal history, such as an arrest, indictment, or conviction.”
One of the biggest risks in the immigration application process is your criminal history. Many applicants assume that because an incident occurred a long time ago or involved a minor offense, it won’t be a problem, but immigration law treats criminal records differently.
An arrest record remains on your record even if you are not convicted. This also applies if a plea agreement was reached or the sentence was suspended after the indictment. All such records may be reviewed during the immigration process and could serve as grounds for denying your application.
One issue to be particularly wary of is making false statements. If you provided inaccurate information on your visa application or during immigration interviews when entering the United States in the past, this could later be deemed a misrepresentation during the application process for immigration benefits. A material misrepresentation is not only grounds for denial of your application but, as explained earlier, can also lead to the issuance of a Notice to Appear (NTA) even after the case has been withdrawn.
If you have been arrested in the past, please obtain a copy of the final disposition from the court in advance. This is because how the case was resolved is a key factor in immigration proceedings. If you can also organize any documents you submitted when applying for a U.S. visa in the past, as well as your entry records, to the extent possible, you can minimize discrepancies in the information provided during the application process.
Application Management — Address Changes and Responses to Rejection Notices
“According to USCIS guidelines, when you change your address, you must notify USCIS separately using Form AR-11 within 10 days and notify the Immigration Court separately using Form EOIR-33 within 5 business days.”
There are still some matters you need to take care of even after submitting your application. Among these, the one most often overlooked is reporting a change of address.
USCIS and the Immigration Court (EOIR) operate separate systems and do not share address information with each other. If you move while your immigration proceedings are ongoing, you must update your address separately with USCIS using Form AR-11 within 10 days and with the immigration court using Form EOIR-33 within 5 business days if you have a case pending there. Reporting your new address to one agency does not automatically update it with the other.
This procedure is important because of the legal effect of service. If a notice to appear or a notice of hearing date is properly mailed to the address on file, it may be considered served even if you did not actually receive it. A significant number of cases resulting in a default deportation order stem from failure to update one’s address.
If you receive a denial notice, the appropriate course of action depends on your specific circumstances. There are several options available, including filing a motion for reconsideration (Form I-290B), appealing to the Board of Immigration Appeals (BIA—an administrative adjudicatory body that handles immigration appeals), reapplying, or defending your case in immigration court proceedings. These remedies must be exercised within the deadlines specified in the notice; for a Motion to Reconsider, the deadline is short—30 days (or 33 days if received by mail) from the date the decision was served. Missing the deadline means you can no longer pursue the same avenue, and your options are drastically reduced. The appropriate course of action depends on the grounds for denial, your current immigration status, and your past record. If you have already received an NTA, immigration court proceedings will proceed separately, so you must prepare your response in accordance with the court’s schedule.
For official documents such as rejection notices or summonses, be sure to record the date you received them and keep a copy on file. This is because the deadline for responding is calculated from that date. If you do not have an accurate record of the date, it will be difficult to determine the deadline later on when you need to verify that you received the document.
Closing remarks
In May 2026, a policy (PM-602-0199) was introduced that shifts the review of Adjustment of Status (AOS—the process of changing one’s status to that of a permanent resident while in the United States) to a discretion-based approach. This means that even if legal requirements are met, applications can now be denied based on discretionary factors. With the NTA policy and the strengthened discretion policy now overlapping, the “let’s just file and see what happens” approach—especially when evidence is insufficient or there are uncertainties in one’s history of stay—has become far riskier than in the past. Furthermore, considering that USCIS’s backlog of pending cases reached an all-time high of approximately 11.6 million as of the end of fiscal year 2025, applicants must factor into their pre-application planning the possibility that their status may expire while the application is being processed. The completeness of the application and the quality of the supporting evidence have become that much more critical in determining the outcome.
If your application is under review, please check the following three points first. First, verify that you will maintain lawful status until the decision to deny your application is issued. You must consider not only your status at the time of filing but also your status at the time the review is completed. Second, review your past arrest records, immigration violations, and the information provided during the visa application process. Identifying potential issues before filing your application gives you more options than trying to address them after submission. Third, if you move while the process is ongoing, be sure to update your address with both USCIS and the Immigration Court. In practice, we frequently see cases where overlooking this simple step leads to serious consequences.
Disclaimer: This column is for general information purposes only and is not legal advice for your specific case. You should always consult with an attorney who specializes in immigration law for your individual case.
Law Offices of Jin D. Cho
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