New rule allows deportation if H-1B extension is rejected

Hit Brother

6 years ago

The revised policy will apply to all applications and requests received by the authorities from September 11 onwards

MUMBAI: Many H-1B visa holders could find themselves facing deportation proceedings if their application for a visa extension or change of status has been rejected and the tenure of stay granted originally by the US authorities (as reflected in Form 1-94) has expired. To make matters worse, despite no longer holding on to a job, they would have to stay on in the US for several months, waiting to be heard by an immigration judge.

A policy memorandum, dated June 28, which came into the public domain last week, permits the US Citizenship and Immigration Services to issue “notices to appear” (NTA) in cases “whereupon denial of an application or petition, the applicant is ‘unlawfully present’ in the US”. Such a notice is the starting point for removal or deportation proceedings.

According to an immigration counsel at an IT company, “It appears that all cases where an application for visa extension is denied, post expiry of the original tenure of stay that was granted, will be issued an NTA.”

Notices for commencement of deportation proceedings were restricted to cases relating to fraud, criminal charges or denial of asylum or refugee status, but the ambit now stands widened.

On being served notices to appear (NTA), the nightmare begins. “Once an NTA has been served, the individual must remain in the US and appear before an immigration judge. A failure to appear for removal proceedings carries a five-year ban on re-entry to the US,” says Snehal Batra, managing attorney, NPZ Law Group.

Earlier, on being denied an H-1B extension, the employee concerned could immediately return to India without the NTA-related hassles. His employers could reapply for a fresh H-1B in the next season.

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“Even international students are not immune to deportation proceedings. Unauthorised employment, failure to enrol in classes or failure on part of the educational institute to update a student’s records could result in an unlawful status for students and issue of a NTA,” adds Batra.

Benjamin Johnson, executive director, American Immigration Lawyers Association, points out that the immigration court backlog, as of May 31, exceeded seven lakh cases. Typically, a majority of H-1B holders are not those on initial visas but on extended visas. Statistics show that during the 12-month period ended September 30, 2017, US authorities approved 3.65 lakh H-1B visa applications, of which only 1.08 lakh, or 29.5%, were for initial employment. Nearly two lakh Indians got visas for continued employment.

“The revised policy could result in a horrendous situation. As the H-1B extension has been denied, the employee can’t work, but he has to linger on in the US for several months to appear before the immigration court,” says the corporate counsel.

“Once removal proceedings have commenced, the individual concerned can leave only after an immigration judge grants voluntary departure,” says Cyrus D Mehta, managing partner of Cyrus D Mehta and Partners, an immigration law firm.

Source: IndiaTimes