On February 28, 2025, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum which expanded the circumstances under which the USCIS is permitted to issue a Notice To Appear (NTA) to a noncitizen.
A Notice to Appear (NTA) (Form I-862) is a charging document that puts a noncitizen into removal proceedings. It specifies the nature of the removal proceedings, the legal authority for the proceedings, the factual allegations supporting removal, and the charges against the noncitizen. Once an NTA is issued, an immigration judge must then decide if the individual should be removed from the United States.
There are many circumstances in which an NTA may be issued. However, below are some of the major updates issued by the latest policy:
1. USCIS Denials
Under the new NTA policy, any noncitizens applying for immigration benefits may be at a greater risk of being issued a NTA in the event that their application is denied. An NTA will be issued if USCIS has made an unfavorable decision on the noncitizen’s benefit request and the noncitizen is not lawfully present in the United States. This includes any noncitizens whose status has expired by the time their benefit request is denied and has no authorization to remain in the U.S.
2. Cases Involving Criminal Issues
Generally, USCIS refers cases involving criminal conduct, arrests, or convictions to the U.S. Immigration and Customs Enforcement (ICE) for enforcement action including NTA issuance determinations. While this remains the same, the latest NTA policy allows the USCIS to issue an NTA to any noncitizen whose benefit request has been denied or withdrawn so long as the noncitizen has been arrested, charged with or convicted of a criminal offense.
3. Cases Involving Fraud or Misrepresentation
USCIS has also expanded its NTA policy with cases involving fraud or misrepresentation. An NTA will be issued to any noncitizen whose benefit request has been denied or withdrawn if material misrepresentation or fraud is part of the noncitizen’s record. Further, even if the noncitizen’s petition or application has been denied for a ground other than fraud, so long as the noncitizen is removable and has a record of fraud or misrepresentation, such noncitizen will be issued an NTA.
4. Beneficiaries of Employment Based Petitions
An exception in the new NTA policy is that the USCIS will not issue NTAs to beneficiaries of employment-based petitions unless the beneficiary is also the signatory on a Form I-129, temporary worker petition. However, dependent family members who have filed Form I-539 applications in connection with their principal family member would receive an NTA under this policy, if such dependent family members’ I-539 applications are denied and they no longer have valid underlying immigration status.
If you have any questions regarding this NTA policy or any other immigration related matter, please do not hesitate to contact KILO Immigration, a Sacramento immigration law firm by filling out this contact form.