Immigration

United States | USCIS releases policy memo on issuance of NTAs in cases involving inadmissible and removable noncitizens

Summary

On February 28, 2025 the United States Citizenship and Immigration Services (USCIS) released a policy memorandum that expands the circumstances under which USCIS will issue a Notice to Appear (NTA) to initiate removal proceedings against a noncitizen. This policy is similar to the June 2018 NTA policy memorandum from the first Trump Administration, with some notable differences.

The policy, effective immediately, expands USCIS authority to refer individuals for removal proceedings following the denial of an application for an immigration benefit, if the noncitizen is no longer lawfully present in the United States. The policy exempts beneficiaries of employment-based petitions from the policy, but does not exempt their dependent family members. The policy also expands USCIS authority to initiate removal proceedings against certain noncitizens with criminal charges, arrests, or convictions.

The detail

Background

An NTA is a charging document that begins the process of removing (i.e., deporting) a noncitizen from the United States, and instructs the noncitizen to appear before an immigration judge. An immigration judge then reviews all of the applicable evidence and the law and determines whether the noncitizen should be removed from the United States, or whether they are entitled to some form of relief to remain in the country.

Several federal agencies within the Department of Homeland Security (DHS) have authority to issue NTAs, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). USCIS also has authority to issue NTAs in specific circumstances, the scope of which has been defined by USCIS policy memoranda issued by recent administrations.

The NTA policy memorandum issued in June 2018 by the first Trump Administration would have substantially expanded the scope of USCIS authority, though the policy was not implemented to its full extent while it was in effect. The Biden Administration later rescinded that policy in 2021, and reinstated the 2011 guidance which instructed USCIS to initiate removal proceedings in a more limited range of cases.

This new policy, which appears to be effective immediately, reverts back to the more expansive approach to NTA issuance from the Trump Administration’s 2018 policy, but makes an important exception for beneficiaries of employment-based petitions.

The new NTA policy and USCIS denials

Under the new NTA policy, USCIS will issue an NTA where:

1. USCIS has issued an unfavorable decision on an immigration benefit request; and
2. The noncitizen is not lawfully present in the United States, which includes noncitizens whose previous status has expired by the time the benefit request is denied and who have no other basis to remain in the country.

The impact of this policy has severe and potentially devastating consequences. Noncitizens applying for an immigration benefit are at greater risk for NTA issuance in the event of a denial. Notably, this includes noncitizens applying for immigration benefits such as a change or extension of nonimmigrant status (Form I-539) or applications to register permanent residence or adjust status (Form I-485). While beneficiaries of employment-based petitions are exempted from NTA issuance, that exemption does not extend to their dependent family members.

Fraud and Misrepresentation

USCIS will issue an NTA in cases presenting substantiated fraud or material misrepresentation. When fraud or material misrepresentation is part of the record and the alien is removable, USCIS will issue an NTA upon adverse action of the benefit request, or other unfavorable determination or action. An NTA will be issued against an individual, even if the petition or application is denied for a ground other than fraud. This guidance did not originally appear in the June 2018 memo.

Exception for beneficiaries of employment-based petitions

The new NTA policy provides an important exception for beneficiaries of employment-based petitions. Specifically, USCIS will not issue NTAs to beneficiaries of employment-based petitions where:

1. The decision on the petition is unfavorable;
2. The beneficiary is not lawfully present in the U.S. or is otherwise removable; and
3. The beneficiary is not the signatory on the temporary worker petition (Form I-129).

While principal beneficiaries of employment-based petitions can benefit from this exception and generally will not be issued an NTA as a result of an unfavorable decision, the same exception does not extend to their dependent family members. As such, it appears that the new policy would result in USCIS initiating removal proceedings against dependent family members, but not against the principal beneficiary.

Criminal cases and the 2025 NTA memo

Generally, USCIS refers cases involving criminal conduct, arrests, or convictions to ICE for enforcement action determinations, including NTA issuance. The new policy expands USCIS authority to issue an NTA if an immigration benefit request is denied or withdrawn, and directs USCIS to issue an NTA to noncitizens who have been arrested, charged with, or convicted of a criminal offense.

This represents a departure from the Biden Administration’s policy, which did not require USCIS to issue an NTA directly after a benefit request denial under such circumstances, but rather referred the case to ICE for a decision on NTA issuance.

What will not change under the new NTA policy?

USCIS will continue to issue NTAs as required by statute or regulation and will not change the rules or policies for the following situations:

1. Where a statute or regulation requires that an NTA be issued to a noncitizen, such as following the denial of Form I-751 and Form I-829 applications to remove conditions on permanent residence for marriage-based applicants and investors;
2. In naturalization cases where the noncitizen is deportable or deemed inadmissible at the time of adjustment or admission to the United States;
3. In cases of fraud or material misrepresentation where the noncitizen is deemed removable, even if the petition or application is denied for a ground other than fraud.

Temporary Protected Status (TPS) recipients

The new policy does not change NTA or notification procedures for TPS cases as described in the regulations. USCIS will generally issue an NTA if it denies an initial or re-registration TPS application, or if the application is withdrawn and the applicant has no other lawful status or authorization to remain in the United States.

In the event that DHS terminates a country’s TPS designation, and the former TPS recipient has no other legal status or authorization to remain the United States, the policy directs USCIS to coordinate with ICE and CBP regarding the appropriate timing of any NTA issuances to former TPS beneficiaries after the country’s TPS designation ends.

Deferred Action for Childhood Arrivals (DACA) recipients

Additionally, the new policy does not change the existing regulations that restrict the issuance of NTAs to DACA applicants after the denial of a DACA benefit request.

USCIS discretion under the new policy

The new policy states that prosecutorial discretion to not issue an NTA should only be exercised on a case-by-case basis and in “very limited and compelling instances” after consultation with a supervisor.

What this means

The impact of the new NTA policy will depend on how fully it is implemented by USCIS during the Trump Administration. The policy signals a shift toward stricter enforcement in employment-based and fraud related cases.

Employers and noncitizens should remain vigilant, ensuring compliance with all immigration requirements to mitigate the risk of possible removal proceedings. Applicants and their employers should plan on applying for immigration benefits as early as possible, and consider using expedited processing where available, to mitigate the risk of denials being issued after the noncitizen’s status has expired. Noncitizens with criminal arrests, charges, or convictions should consult an immigration lawyer to understand the potential impact of this policy to their situation. Any noncitizen who is issued an NTA should retain an immigration lawyer to help them understand and navigate the removal proceedings.

It is essential that employers and noncitizens who may be affected by this policy consult with a competent and reputable immigration lawyer, if possible, to receive the most appropriate advice for their circumstances. Vialto will continue to monitor the impact of the new NTA policy and will provide further information and guidance as developments arise.

Contact us

For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:

Manish Daftari
Partner

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