H1B Extension Denial Can lead to Deportation NTA – USCIS changes policy

Anil Gupta  4 Sep, 18      2  USA

USCIS policy change allows deportation order after visa denial including H1B extension or transfer. 240 day i94 expiry rule is going to hurt many if visa is denied.


Update August 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.

Commencement of Removal Proceedings: USCIS recently announced that it will place a legal immigrant in removal (deportation) proceedings if his or her application to change or extend status is denied and he or she does not have another underlying lawful status.

Our employees are concerned that they will face removal proceedings even if they have complied with immigration laws and intend to promptly depart the country.

H1B Visa Extension or Transfer Denial can lead to forceful deportation

Update July 30, 2018 – USCIS has 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.

We will keep a track and update this page as and when changes are made.

This is big news and a big change announced by USCIS in its policy on June 28, 2018.
It allows USCIS consultants to initiate 'Deportation Proceedings' for anyone who's visa change of status, extension or transfer has been DENIED.

Related: July 13, 2018 – H1B Extension can be denied without RFE – USCIS changes policy

This is a big blow to most of the skilled worker community like H1B, F1 and other temporary visa holders when they are already struggling with DHS's decision to withdraw the H4 EAD work authorization.

As per the new order, USCIS agent has been given the power to issue an NTA for a person who’s visa petition has resulted in a denial like an H1B transfer/extension.

What is Notice to Appear (NTA)?

NTA = "Notice To Appear" (NTA)
The purpose of the Notice to Appear is to place an individual into deportation proceedings.

ICE is the primary authority to issue such NTA before the immigration courts.
CBP and USCIS also have 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

USCIS gets authority to issue NTA after H1B visa denial

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

USCIS can issue NTA (deportation proceedings) for Non-immigrants who’s application for a visa extension or change of status, a green card, or citizenship application is denied and they are deemed to present unlawfully in US.
Your unlawful presence starts the day your visa is denied by USCIS in case your i94 has already expired.

In Trump administration, mere denial of your petition for visa extension puts you on the same fast-track forceful deportation by US government as being charged with a crime, or doing something DHS considers to be criminal (even if never arrested or charged).

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

Source: USCIS NTA policy.

Whats if I receive NTA after my H1B extension has been denied?

Earlier, if the H1B extension was denied, an H1b worker could have left USA on its own.

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

NTA issued and you depart US and fail to appear in immigration court?

A simple H1B visa extension can lead to NTA and you may have left US without any issue. But, if NTA is issued and you have left USA, you will most probably fail to appear for your deportation case proceedings.

This failure to appear, in turn, will lead to issuance of forceful deportation order against you.
Failure to appear also carries a 5 year ban on re-entry to US!

This ‘deportation order‘ will certainly be a cause of concern for all future US visa applications.

Staying in US after H1B visa denial is counted as ‘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 two 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 NTA be issued for my H1B extension?

Yes, it can NOW be issued for any H1B extension denial. Nobody is an exception here.

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

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

Isn’t this ridiculous?
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!

All your hard work will be flushed down the drain with issuance of NTA by USCIS.

USCIS makes filing H1B in premium mandatory indirectly by NTA policy change

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 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 has to prove his/her 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

Article originally published at TruVisa.
Republished here for wider audience.