On February 28, 2025, USCIS issued a memorandum updating its policy regarding the issuance of Form I-862, Notice to Appear (NTA) to place noncitizens into removal proceedings. The memorandum now lists all the circumstances in which USCIS “will” issue an NTA.
The memo describes that after collaboration with ICE, USCIS will issue NTAs to noncitizens who are considered national security risks. USCIS will also issue an NTA in cases involving an arrest, charge, or criminal conviction where the case is denied, or the applicant withdraws the application. Substantiated fraud and misrepresentation will also lead to USCIS issuing an NTA. Further, USCIS will issue an NTA to those who lose or withdraw their TPS, and the noncitizen has no other means of lawfully remaining in the country. Naturalization applicants who are deportable or improperly received their green cards will also be subject to removal proceedings. Finally, those who are unlawfully present and whose benefit request is denied will receive an NTA.
In the recent past, denial notices for most applicants mentioned the possibility of an NTA, but in practice, many did not receive one, especially if solely based on a denial of benefits. Going forward, USCIS will exercise its discretion to not issue an NTA, but the memorandum makes clear that discretion should be used sparingly. USCIS may also refer matters to ICE for enforcement purposes. Therefore, USCIS denials will have a higher likelihood of individuals being placed into removal proceedings. This means, for example, that if your status lapses during the pendency of an adjustment of status application and that application is denied, it is likely that you will be placed in removal proceedings. Thus, applicants should be extremely careful when applying for benefits with USCIS, especially if the applicant will not have another immigration status to fall back on should the benefit be denied. Ensuring that all required evidence is included with the application and that the applicant does not have any disqualifying issues in their case is now, more than ever, of the utmost importance.
