On June 28, 2018 the United States Citizenship and Immigration Services (USCIS) issued a policy memorandum to update its guidance about Notices to Appear (NTAs).
Following this change, H-1B visa holders whose visa extension or change of status are rejected will now receive an NTA – the first step to placing an individual into deportation proceedings – if his or her initial tenure of stay has expired.
This legally obligates the foreign national to remain in the US and appear before an immigration judge. Previously, they were able to leave the US and apply for another visa to the US from abroad.
The consequence of this change is “staggering” as described by Jennifer Minear, Director of the Immigration Practice Group at McCandlish Holton.
In an interview with Forbes, Minear said:
“The potential harsh consequences as a result of this memo are staggering.”
Failure to comply with NTAs will result in a deportation order issued against the person involved, who would also face a 5-year ban on re-entry to the US. Having this order or bar on your record could make applying for a future visa more difficult, if not impossible.
Complying with the NTA, on the other hand, would mean years of scheduled court dates since the legal process is already inundated with backlogs in immigration courts. Throughout this time, the student holds the status of “unlawfully present” and will not be able to obtain legal authorisation to work.
Winning the case would wipe this unlawful presence status away and restore his or her valid visa status. But losing would likely lead to a 10-year bar on re-entering the US.
New USCIS Policy Will Carry Harsh Consequences For Applicants USCIS can deny an application and put a person into deportation proceedings under a harsh new policy to discourage high-skill immigration. https://t.co/TNBKOQ6Ixh https://t.co/nrOLzOzhVM
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These are “extreme” consequences to the foreign national, according to Minear.
“For most people, being placed in proceedings is a legal limbo where you are not lawfully present, yet not able to leave without triggering a bar on re-entry, and not able to work legally,” she said.
US government data shows that this new move could affect the majority of H-1B visa holders in the US, who remain on continued work visas rather than initial study visas.
How will this new immigration policy affect H-1B visa holders and international students?
An immigration counsel at an IT company told the Times of India that “all cases” where an application for visa extension is denied will be issued an NTA. Similarly, Minear said they are “likely to be placed into deportation proceedings”.
“Unauthorised employment, failure to enrol in classes or failure in part of educational institutes to update a student’s records could result in an unlawful status for students and issue of an NTA,” Snehal Batra, Managing Attorney at NPZ Law Group said.
What makes this “particularly alarming” is that there may have been no prior warning for the affected international student that they had violated terms of their student visa status.
If you’re an international student or graduate working under a H-1B visa, it is advisable to ensure all possible precautions are taken to adhere to the terms of your respective visa status.
All H-1B petitions and extension applications may be filed up to six months in advance of the expiration date on the current petition. These should be filed at the earliest date possible and incorporate a request for “premium processing” to avoid being served an NTA.