New Rule Will Affect H1B Visa Extension Applications

A new USCIS policy memorandum has broadened its power to issue a Notice to Appear for non-immigrants seeking to extend their H1B visa.  This is a move that seems clearly designed to limit visa extensions beyond the initial three-year period and could interrupt the work of thousands of H1B visa holders.

What is a Notice to Appear?

Simply, an NTA is a document ordering a foreign national to appear before an immigration judge to review their status.  NTAs have been typically been issued if there is suspicion of fraud, criminal activity or illegal status, and if the court determines this is the case then the foreign national can be deported immediately.

What Has Changed with the New Rule?

Previously, NTAs were only issued after consulting with Immigration and Customs Enforcement (ICE), but now that step can be bypassed and the USCIS can issue an NTA on its own.  ICE is normally the agency charged with investigating immigration status, including H1B visa holders and workplaces.

It signals a more aggressive stance toward those who may be out of status or even waiting to hear about a pending visa extension.  For example, if an H1B visa worker has an extension application pending review and there is a delay they potentially could be deported if their original visa expires during the wait.  This is even more significant since another recent rule change stated that extensions will be reviewed with the same level of scrutiny as an original H1B petition.

As one immigration attorney described the change, “Now, USCIS will issue a Notice to Appear on its own initiative and thereby place individuals in removal proceedings upon denial of an application or petition for immigration benefits if the person is deemed removable at the time of the denial.” 

Why will an NTA be Issued if the Extension is Denied?

This is the central question, because now in the event of a denial the foreign worker would be at risk of deportation right away.  If an H1B worker receives an extension rejection, then technically they are out of status once their original H1B expires. Before, they had a two- month grace period and could even seek a new position during the interim.

However, if an NTA is issued by USCIS following a rejection, that means the worker has to appear in immigration court.  Failure to appear carries a five-year ban on re-entry to the US. So, what this means is that if a worker’s visa extension is denied they cant just get on a plane and go home, if an NTA has been issued.  They may have to stay in the US several months waiting for their court date, even if they are no longer working.

NTAs: The New USCIS Tool to Tighten the H1B Program

With this new rule hanging over their head it may be that fewer H1B visa holders will seek extensions, since a rejection could threaten their chance to return to the US.  It gives USCIS broad discretion to issue NTAs for virtually any type of status review, initiate court proceedings and impose a ban to re-entry. It appears that they may issue NTAs for every H1B extension rejection, a significant risk for applicants.

With these types of administrative rule changes, there is really no reason to pass new legislation as it appears the USCIS continues to increase its power to derail the work visa program for foreign workers.

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  • June 30th, 2019
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