USCIS Policy Memo on the Issuances of NTAs

On February 28, 2025, USCIS issued a policy memo detailing guidance regarding USCIS issuance of Notices to Appear (NTAs). An NTA (Form I-862) is a charging document that initiates removal proceedings and states the immigration charges alleged against a noncitizen and informs the noncitizen of the time and place of their court hearing. A similar but not identical policy memo was issued under the prior Trump administration in 2018. In addition to detailing circumstances where USCIS will or may issue an NTA, this new memo also sets out very narrow parameters for prosecutorial discretion to not issue an NTA and implements a system to track instances of prosecutorial discretion.

Key Takeaways:

• Generally, if USCIS denies a benefit request and the noncitizen is not lawfully present, or is subject to other grounds of removability, USCIS will issue an NTA.

• USCIS will no longer exempt classes or categories of removable noncitizens from potential enforcement, including referring cases to ICE.

• Criminal cases

  • USCIS generally refers cases involving criminal history to ICE. Subject to that existing process, USCIS will now “issue an NTA against removable [noncitizens] if they have been arrested, charged with, or convicted of a criminal offense if the benefit request is denied or withdrawn, so long as the [noncitizen] is not subject to mandatory detention pursuant to INA § 236(c).”

  • Criminal charges listed on the NTA must be supported by evidence in the record, and a Request for Evidence (RFE) for certified conviction documents can only be issued if relevant to the benefit applied for. See 8 CFR § 1003.41.

• This memo does not change NTA procedures for Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS) cases. The memo will apply where TPS regulatory provisions in 8 CFR part 244 have been exhausted or found inapplicable.

• USCIS will issue an NTA in “cases presenting substantiated fraud or material misrepresentation” even if the petition is denied for a ground other than fraud, including withdrawal of the application, so long as the noncitizen “is removable and USCIS has determined there is fraud in the record.”

  • USCIS should include the fraud or misrepresentation charge in the NTA when evidence in the record supports it.

• USCIS will also issue an NTA:

  • If an employment-based petition is denied and the beneficiary is not lawfully present and is the signatory on the Form I-129.

  • If a naturalization applicant may be eligible to naturalize but is also deportable under INA § 237 (e.g., an applicant convicted of deportable offenses after obtaining lawful permanent resident status) or if it is determined that they were inadmissible at the time of adjustment or admission to the United States.

• USCIS may issue an NTA:

  • In limited circumstances if a noncitizen requests that an NTA be issued, provided the request is made in writing.

  • For expedited removal cases referred for credible fear screenings.

    • There may be broad implications for this given current policies on expedited removal. See AILA’s recent Expedited Removal practice pointer.

  • Affirmative asylum applicants whose application was referred to EOIR by USCIS and then the removal proceedings were dismissed or terminated by the Immigration Judge.

    • It is not clear with the wording of the memo whether this directive covers only asylum seekers who had an affirmative asylum interview by USCIS, or whether it more broadly applies to cases where the noncitizen had to file an I-589 with USCIS because DHS had not filed their NTA with EOIR. Under the Biden administration, the Asylum Office would only re-refer cases to EOIR if the asylum seeker had already had an affirmative interview or if the NTA was terminated for technical deficiencies.

  • When an Application to Replace Permanent Resident Card (Form I-90) is denied due to abandonment of LPR status.

  • If parole is expired and terminated and the individual is not lawfully present.