U.S. Citizenship and Immigration Services issued updated guidance on July 5, 2018 that aligns its policy for issuing Form I-862, Notice to Appear (NTA), with the immigration enforcement priorities of the Department of Homeland Security.

USCIS, along with Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), has legal authority under current immigration laws to issue NTAs. This latest Policy Memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA. The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

• Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.

• Criminal cases where an applicant is convicted of or charged with a criminal offense or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

• Cases involving national security concerns;
• Cases where issuing an NTA is required by statute or regulation;
• Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
• DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.