The U.S. Citizenship and Immigration Services (USCIS) has traditionally not initiated removal proceedings after denying an immigration benefit, even in cases where the applicant was known to lack lawful presence in the country. However, this is now changing.
Last month, USCIS issued a policy memorandum titled “Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” (PM-602-0187). This memo significantly expands the agency's policy on issuing NTAs to noncitizens who have applied for benefits but are found to be inadmissible or deportable.
What is a Notice to Appear (NTA)?
An NTA (Form I-862) is a charging document that initiates removal proceedings by instructing a noncitizen to appear before an immigration judge on a specific date. It also specifies the legal grounds for removal. When an NTA is issued, it is filed with immigration courts to formally commence deportation proceedings under section 240 of the Immigration and Nationality Act (INA).
USCIS has long had the legal authority to issue NTAs, along with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). However, its issuance of NTAs has been historically limited to specific circumstances, such as cases involving fraud, criminal activity, termination of conditional permanent resident status, and asylum referrals.
What Has Changed?
Under the new 2025 policy, USCIS will now issue NTAs in a broader range of cases, including:
Unlawful Presence Cases: Noncitizens whose applications for immigration benefits are denied while they are unlawfully present in the U.S. will now receive NTAs.
National Security Cases: USCIS will prioritize the removal of noncitizens deemed threats to national security. NTAs involving INA section 212(a)(3) or 237(a)(4) charges must be coordinated with ICE attorneys.
Criminal Cases: Previously, USCIS only referred cases involving criminal offenses to ICE. Now, USCIS will directly issue NTAs if the noncitizen has been arrested, charged, or convicted of a criminal offense, provided they are not subject to mandatory detention under INA § 236(c).
Fraud and Misrepresentation: If fraud or material misrepresentation is found in an immigration application, USCIS will issue an NTA upon denial, even if the fraud was not the primary reason for the denial.
Employment-Based Petitions: A significant carve-out was made for employment-based petition beneficiaries. USCIS will not issue NTAs to these individuals unless they are also the signatory on their own Form I-129 (Petition for a Nonimmigrant Worker), which is often the case for entrepreneurs and self-petitioners.
Naturalization Cases: USCIS officers will issue NTAs to naturalization applicants who are found to be deportable under INA section 237 or who were inadmissible at the time of adjustment of status.
Prosecutorial Discretion: While officers still have prosecutorial discretion, the policy significantly limits it. Any exercise of discretion must be documented in USCIS records, making enforcement decisions more transparent but also more restrictive.
Historical Context and Policy Evolution
This move mirrors a similar shift in policy under the Trump administration. In 2018, USCIS issued a policy memorandum (PM-602-0050.1) broadening the agency's role in enforcement, especially for cases involving criminal convictions, fraud, and unlawful presence. That policy was based on a directive from former DHS Secretary John Kelly, issued to implement President Trump's 2017 Executive Order 13768, Enhancing Public Safety in the Interior of the United States.
However, the 2018 policy was never fully implemented before being rescinded by the Biden administration in January 2021. Now, with the return of the Trump administration in 2025, USCIS is once again expanding its NTA issuance authority. The new policy is likely to be phased in gradually to avoid overwhelming an already backlogged immigration court system.
Implications for Immigrants
The expansion of USCIS's authority to issue NTAs will have significant consequences for immigrants, particularly those with pending applications. Some key takeaways include:
Increased Risk of Removal: Noncitizens who apply for immigration benefits but are ultimately denied could now face deportation proceedings more swiftly than before.
More Burden on Immigration Courts: Immigration courts are already dealing with record backlogs, and this policy could exacerbate delays.
Employment-Based Exceptions: The policy appears to exempt many employment-based applicants from immediate enforcement, likely to prevent disruption to businesses.
Limited Discretion for Officers: The stricter oversight on prosecutorial discretion means fewer opportunities for case-by-case leniency.
Conclusion
USCIS's 2025 NTA policy marks a major shift in immigration enforcement, aligning with broader Trump administration priorities. The decision to expand NTA issuance will increase deportation risks for applicants who lack legal status while also potentially straining immigration courts and ICE prosecution capacity. As this policy is implemented, it is crucial for noncitizens to seek legal guidance when applying for immigration benefits to avoid unexpected removal proceedings.
At Saluja Law, we are closely monitoring these policy changes. If you or a loved one may be affected by this new USCIS directive, contact our office to discuss your legal options and develop a strategy to protect your status in the U.S.