New DHS Policy on issuance of Notice to Appear

By Atty. Crispin Caday Lozano

Starting October 1, 2018, the 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 September 19, 2018, we received an approval of N-400 naturalization application and one Fiancée visa petition..
  2. For the month of August 2018, we received an approval of four Naturalization applications and five adjustment of status applications.
  3. On July 27, 2018, we received an approval for permanent resident for a client who was abused by her spouse under VAWA.
  4. For the months of May to June 2018, we have received four Naturalization applications approvals and two Adjustment of Status approvals
  5. On April 18, 2018, we received a grant of waiver from Immigration Court for a husband and wife client who made a misrepresentation of their  marital status but has no criminal records, has long residence and strong family ties in the U.S.
  6. On April 12, 2018, the Immigration Judge in San Francisco approved a waiver of misrepresentation in applying for a visa          for our client who has been in the       U.S. for 26 years, no criminal record and strong family ties in the U.S.
  7. On April 3, 2018, we received an approval from USCIS for a U visa for a client who was a victim of crime.
  8. For the month ending March 31, 2018, we received approvals for four naturalization applications.
  9. For the week ending March 31, 2018, we received approvals of six Adjustment of Status, two Application to Remove Condition on Residence and two Renewal of Green Card approvals.
  10. On March 9, 2018, we received an approval from USCIS for adjustment of status for a client who was abused by her spouse.  The I-601 waiver was approved based on extreme hardship.
  11. On February 15, 2018, we received a grant from Immigration Judge for a waiver of misrepresentation for a client who has been in the U.S. for long period of time.

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.  His contact phone is 1-877-456-9266, email:

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