DHS Policy on issuance of Notice to Appear

By Atty. Crispin Caday Lozano


The policy of issuing a Notice to appear (NTA) was revised on October 1, 2018.  DHS will issue Form I-862 Notice to Appear (NTA) for denied Form I-485 Adjustment of Status Applications and Form I-539 Application to Extend/Change Nonimmigrant Status.  In addition, denied I-751Petition to Remove Condition on Residence and N-400 Application for Naturalization that was denied based on lack of Good Moral Character will also be issued NTA.

The Notice to Appear is the document served to an alien informing him to appear in Immigration Court to answer charges that he is removable in the United States.   Once he received the NTA he should immediately contact an immigration attorney for consultation.

Removable and Deportable aliens are covered under 8 U.S. Code Sec. 1227 (INA 237)  while Inadmissible aliens are covered under 8 U. S. Coder 1182.(INA 212).  The policy memo issued is the implementing guidelines for the DHS.  Generally, the following classes of aliens are deportable or removable:

  1. Those with criminal charges
  2. Those who are risk to national security interest of the United States
  3. Termination of Conditional Permanent Resident Status and denied Form I-751;
  4. Fraud, Misrepresentation and Abuse of Public Benefits cases;

When fraud, misrepresentation, or evidence of abuse of public benefit programs is part of the record,15 and the alien is removable, USCIS will issue an NTA upon denial of the petition or application, or other appropriate negative eligibility determination (e.g., withdrawal, termination, rescission). An NTA will be issued against such a removable alien, even if the petition or application is denied for a ground other than fraud, such as lack of prosecution or abandonment, the application or petition is terminated based on a withdrawal by the petitioner/applicant, or where an approval is revoked, so long as the alien is removable and USCIS has determined there is fraud in the record.

  1. . N-400 Denials

USCIS will issue NTAs on all N-400 cases if the N-400 has been denied on good moral character (GMC) grounds based on the underlying criminal offense, and provided the alien is removable.

V. Aliens Not Lawfully Present in the United States or Subject to Other Grounds of Removability

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

VI. Special Circumstances for NTA Issuance

In limited and extraordinary circumstances, USCIS may issue an NTA if a removable alien requests that an NTA be issued, either before or after the adjudication of an application or petition, in order to seek lawful status or other relief in removal proceedings. The request must be made in writing to the USCIS office that has jurisdiction over the case, and USCIS retains discretion to deny such a request.

If you have questions about this new policy you may request a free consultation in our office.

Note:   This is not a legal advice.


  1.  On May 6, 2019, we received approvals of three adjustment of status applications and two Naturalization applications.
  2. On April 24, 2019, we received approval from USCIS for three naturalization applications and one adjustment of status.
  3. On March 29, 2019, we received an approval of adjustment of status for a client whose petitioner and primary beneficiary has died under INA 204(l)
  4. On March 28, 2019, we received an approval of renewal of green card for a client who was in the Philippines under medical treatment for one and a half years.
  5. From March 4 to 26, 2019, we received six adjustment of status approvals.
  6. For the month of February, 2019, we received tow approvals of renewal of green card and one approval of removal of condition on residence.
  7. On January 16, 2019, we received an approval of naturalization for a client who received a waiver of misrepresentation in Immigration Court.
  8. On January 28, 2019 we received an approval of adjustment of status for a client who entered on a visa waiver.
  9. On December 6, 2018, we received an approval from Immigration Judge an adjustment of status for a client in removal proceedings.
  10. On December 26, 2018, we received an approval from USCIS of adjustment of status for a client after our response to Notice of Intent to Deny the case based on good faith marriage issues.
  11. On December 28, 2018, we received an approval of a naturalization from USCIS for a client who was granted a waiver of misrepresentation in Immigration Court.
  12. For the month of December 2018, we received approvals of I-751 for three clients.
  13. For the month of November 2018, we received approvals of two adjustment of status, one naturalization and one U visa petition.
  14. For the month of October 2018, we received five approvals of N-400 and one approval for adjustment of status, two approvals of I-601A waiver of unlawful presence and one I-751 Removal of Condition on Residence.
  15. On September 19, 2018, we received an approval of N-400 naturalization application and one Fiancée visa petition..
  16. For the month of August 2018, we received an approval of four Naturalization applications and five adjustment of status applications.
  17. On July 27, 2018, we received an approval for permanent resident for a client who was abused by her spouse under VAWA.

If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation.

Crispin Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers.  He practices immigration law, bankruptcy and personal injury law since June 1999.  His contact phone is 1-877-456-9266, email: info@ccllaw.net

Toll Free 1-877-4LOZANO for free consultation or Schedule an Appointment