USCIS allows deportation proceeding after H1B Extension or Transfer Denial

Update Oct 2, 2018 – USCIS Teleconference Details

USCIS teleconference Q &A analysis.

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

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

  1. H1B applications out of scope of NTA at this time!
    At this time, USCIS is NOT implementing NTA for employment based applications including H1B workers. Good news!!

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

  2. Adequate notice time before NTA is issued
    USCIS will send denial letters for status-impacting applications that ensure benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants 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.

Update August 24, 2018

Business Roundtable has sent an official letter to USCIS on their recent policy changes and how they affect the H1B families.

Letter in support of H1B is 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.

This change allows USCIS consultants to initiate ‘Deportation Proceedings’ (also called NTA) for anyone who’s visa change of status, extension or transfer has been DENIED.

It 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.

What is (NTA) Notice to Appear?

NTA = “Notice To Appear” (NTA) before an immigrant court for hearing.
This NTA leads to ‘deportation proceeding’ to deport the person from US.

ICE is the primary authority to issue such NTA before the immigration courts, but CBP and USCIS also have the authorities to issue NTA in very limited cases of immigration violations like criminal offenses.

USCIS gets authority to issue NTA after H1B visa denial

As per the new policy change, USCIS can issue NTA (deportation proceedings) for Non-immigrants who’s application for visa extension (transfer) or change of status, a green card, or citizenship is denied.

Before this change, a criminal conviction was required to be deported forcefully by issuing NTA. Refer 2011’s USCIS policy on NTA.

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

Source: USCIS guidance for issuing NTA for deportation.

What 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.

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 is a tricky situation and going to result in a big mess for any H1B worker or for that matter any visa holder.

As an 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 indirectly by NTA policy change

Issuing NTA makes an H1B worker the biggest target and indirectly forces every H1B application to be filed in ‘Premium processing.

If you want to avoid any potential NTA against your, 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 of 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.

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.

Source: USCIS policy