USCIS NTA Policy Starts Oct 1, 2018 – i485, i539 – H4 Visa affected

Anil Gupta  2 Oct, 18      12  USA

USCIS NTA policy change starting Oct 1, 2018 for i485 & i539 applications. H1B out of scope of NTA at this time. Adequate notice period before NTA is issued.


Update Oct 2, 2018 – USCIS teleconference details

USCIS teleconference Q&A conclusion points explained.

Update Sep 26, 2018 – NTA policy starting Oct 1, 2018

Breaking News: USCIS will start implementing NTA policy starting Oct 1, 2018, for i539 (like H4, H4 COS) and i485 applications.

  1. H1B applications out of the scope of NTA at this time – Good news
    At this time, USCIS is NOT implementing NTA for employment-based petitions including H1B.
  2. Sufficient time to be given before NTA is issued – USCIS will send denial letters for applications that ensure you are provided adequate notice when an your application is denied. If you are no longer in a period of authorized stay and do not depart the United States, USCIS may issue an NTA.
  3. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.

USCIS NTA policy timeline

  1. Aug 24, 2018 – Business Roundtable has sent an official letter of support to USCIS, signed by Apple, ADP, American Airlines, Pepsi, Coca-Cola among other CEOs to rethink their NTA policy.
  2. July 30, 2018 – USCIS delayed the execution of NTA policy due to pending ‘operational guidance‘.
    Operational guidance was expected to be issued to USCIS consultants within 30 days of June 28, 2018. But, it has not happened yet and hence, NTA policy is not executed at this time.

What is NTA (Notice to Appear)?

An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings.

On June 28, 2018 changed its policy to allow USCIS consultants to initiate ‘Deportation Proceedings‘ using NTA (Notice to appear) for anyone who’s visa change of status, extension or transfer has been DENIED.

Before this policy change, ICE was the primary authority to issue such NTA. CBP and USCIS also had the authorities to go for such NTA in very limited cases of immigration violations like criminal offenses.

Related: EB2 India Predictions – 20 years average wait time, 151 years worst case

Now, the visa denial has been added as criteria to go for NTA by USCIS directly without going through ICE.

USCIS can issue NTA for people who’s application for a visa extension or change of status, a green card, or citizenship application is denied and their status becomes unlawful in the US.
Your unlawful presence starts the day your visa is denied by USCIS in case your i94 has already expired.

 

USCIS policy change Allow Deportation after visa denial
USCIS policy change Allow Deportation after visa denial

Source: USCIS NTA policy.

NTA issued after my H1B extension has been denied?

If the NTA is issued by USCIS for you, you have the obligation to stay in the US and appear in immigration court proceedings.
Or at least hire a lawyer (Attorney) to appear in immigration court on your behalf if you decide to leave the US.

NTA issued, departed US – fail to appear in immigration court?

A simple H1B visa extension denial after i94 expiry can lead to NTA and if your failure to appear in court will lead to the issuance of the forceful deportation order against you.
It also carries a 5-year ban on re-entry to the US.

Staying in US after H1B visa denial = ‘Unlawful Presence’

This tricky situation is going to result in a big trouble for an H1B worker or any visa holder.

Example:
You are working on H1B visa after your i94 expiry and H1B extension has been filed before i94 expiry. You are legally allowed by USCIS to work and stay in US up-to 240 days.
Now, if your H1B extension is denied, your status in US is counted as ‘Unlawful presence‘.

This is a real-life scenario as H1B extensions filed in regular processing take more than 8 months easily to reach a decision.

The best option, in this case, is to leave US immediately on visa denial. That’s what every H1B worker has been doing over the years to stay on the right side of immigration law.

If NTA is issued after this denial (since you started gathering unlawful presence as of the date of denial by USCIS), the H1B holder ‘may’ decide to stay in US and contest his case in immigration court which may take years to reach a decision.

Remember that ‘All the time’ that you in US after your visa denial, you are adding ‘Unlawful presence’ automatically.

This has 2 consequences:

  1. You WIN immigration court NTA case: Your status in US after your visa denial to the date of case win will be restored as legal.
  2. You LOSE immigration court NTA case: Your status is ‘Unlawful Present’ and it carries a 10-year ban.

Do you see the potential problem here?
Since Trump administration is not able to change the laws to curb legal immigration, they are trying their best to scare the individual person by throwing un-necessary court cases at them.

Who do you think will have the time and resources to fight the immigration cases if they came to US to work legally?
An NTA can potentially ruin their future chances to ever come back to US legally again and work.

Can H1B work after extension denial while fighting NTA case in court?

NO, you cannot. Once your work authorization is denied, you cannot work in US.

Your simple H1B extension denial has the potential of turning your career upside down and stamp you with ‘illegal’ non-immigrant from ‘legal skilled worker’ in a matter of days!

H1B premium processing – useful to avoid NTA

Issuing NTA makes an H1B worker the biggest target and indirectly forces every H1B extension or transfer application to be filed in ‘Premium processing’, if not suspended.

If you want to avoid any potential NTA for your case, you will certainly want to get your extension approval before your i94 expires.
And if you want to make sure you get a result quickly, you have to pay for premium processing.

Life is going to be even more difficult, restricted and expensive for skilled workers after this new policy.

Visa holder to prove legal status if NTA is issued

Once in deportation proceedings (NTA) after visa denial, the visa holder must prove his lawful status in US.

H1B denial can lead to deportation
H1B denial can lead to deportation

Recently, USCIS changed policy for F, M and J visa holders and barred STEP OPT candidates to work at third party locations with respect to unlawful presence in the country.

USCIS policy