On February 28, 2025, USCIS issued a Policy Memorandum regarding the issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens. Effective immediately, USCIS will no longer exempt classes or categories of removable aliens from potential enforcement, which includes referring cases to ICE and issuance of NTAs.
This policy memo is similar to one issued in 2018 by the first Trump administration and later revoked by the Biden administration. The difference between this 2025 and 2018 memo is the exemption for employment-based petition beneficiaries.
Background
The Notice to Appear (NTA) (Form I-862) is a charging document that instructs an alien to appear before an Immigration Judge and specifies the nature of the removal proceedings. USCIS has authority under the immigration laws to issue NTAs, which are thereafter filed with the Immigration Court to commence removal proceedings under section 240 of the Immigration and Nationality Act (INA). U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have concurrent authority to issue NTAs.
Special Circumstances Involving NTA Issuance
There appears to be a narrow exception within this policy memo, in that USCIS would not issue NTAs to individuals who are beneficiaries of employment-based petitions unless that individual is also the signatory on their Form I-129 temporary worker petition. This narrow exemption, however, would not apply or transfer to the employment-based beneficiary’s dependents.
- Beneficiaries of Certain Employment-Based Petitions: USCIS will issue an NTA to a removable alien who is the beneficiary of an employment-based petition where:
- The decision on the petition is unfavorable;
- The beneficiary is not lawfully present in the United States or is otherwise removable; and
- The beneficiary is the signatory on the Petition for Nonimmigrant worker (Form I-129).
- Certain Naturalization Cases: USCIS will issue NTAs in connection with an Application for Naturalization (Form N-400) filing in the following situations, in addition to any criminal or other such qualifying offenses:
- When the applicant may be eligible to naturalize but is also deportable under INA 237. Examples include applicants convicted of aggravated felonies prior to November 29, 1990, or applicants convicted of deportable offenses after obtaining lawful permanent resident (LPR) status that do not preclude GMC or otherwise make an applicant ineligible for naturalization; or
- When it is determined that the applicant was inadmissible at the time of adjustment or admission to the United States, and thus deportable under INA 237, and ineligible for naturalization under INA 318.
- 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 a benefit request, the alien is not lawfully present in the United States.
USCIS issues NTAs in the Following Circumstances
The policy memo expands USCIS’s powers to include initiating removal proceedings through the NTA for foreign nationals with a criminal history.
- NTA Issuance Required by Statute or Regulation: USCIS issues NTAs pursuant to statute or regulation (“regulatory NTAs”).
- National Security Cases: DHS prioritizes the apprehension and removal of aliens who pose a danger to national security. National security cases generally involve aliens who have engaged in or are suspected of terrorist activities or espionage or related activities, including those who are otherwise described in INA 212(a)(3) or INA 237(a)(4).
- Criminal Cases: DHS prioritizes the apprehension and removal of aliens who pose a threat to public safety.
- 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.
Exempt from this Policy Memo, but not from NTAs
- DACA: This PM does not apply to or change NTA-related procedures involving Deferred Action for Childhood Arrivals (DACA).
- Temporary Protected Status: This PM does not change NTA or notification procedures for Temporary Protected Status (TPS) cases as described in 8 CFR part 244.
Prosecutorial Discretion
Prosecutorial discretion not to issue an NTA to a particular alien may be exercised on a case-by-case basis by an Immigration Services Officer (ISO), Asylum Officer (AO), or a similarly situated adjudications officer in consultation with a Supervisory Immigration Services Officer (SISO), Supervisory Asylum Officer (SAO), or a similar supervisor or higher of the component that initiated or will initiate the enforcement action, regardless of which DHS entity actually files any applicable charging documents.
Erickson Insights
The full impact of this USCIS NTA policy memo will be based on how fully it is implemented.
Erickson Immigration Group will continue to monitor developments and share updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or case-specific questions.
EDITORIAL FOOTNOTE: The Trump administration has used the term “alien” to refer to people who are immigrants and foreign nationals. In instances where we’re repeating administration policy, we are using their terminology.