On June 28, 2018 the USCIS issued amemoregarding Notices to Appear (NTA) in a wider range of cases. On July 30, 2018, the USCIS indicated thismemo’s implementation would be delayeduntil further guidance regarding its administration can be issued.
Under the new memo, USCIS Officersare now mandated to issue (NTAs for cases where the individual is removable becausethere is evidence of fraud, criminal activity, or where an applicant is deniedan immigration benefit and is unlawfully present in the US. An NTA initiatesdeportation proceedings and instructs the foreign national to appear before anImmigration Judge. Even if issuance ofthe NTA is erroneous, there is a five year ban to re-entering the US if theforeign national departs the US while deportation proceedings are on-going. NTAs will be sent to the employee’s last knownaddress and not to the H-1B attorney.
Unlawful presence accrues if theprevious I-94 card has expired from the date of denial of the new immigration petitionforward. For example, an H-1B worker isconsidered unlawfully present when the request for an H-1B extension is deniedand the prior H-1B has already expired.
o 180 days to 364 days of unlawful presenceresults in 3 year bar of return to US
o 365 days+ results in 10 year bar of return tothe US
This would most commonly apply tocases where the foreign national’s I-94 has already expired and their extensioncase denied. For example: the employee’sI-94 expires on May 1; extension filed February 1, but is pending for 9 monthsuntil November. In November the H-1Bextension is denied. The employee nowhas an expired I-94 card and is deportable.
Appealing the H-1B denial isgenerally not advised as the Appeals Office has a 90%+ rate of upholding theUSCIS denials and a pending appeal does not stop accrual of unlawfulpresence or protect the worker from deportation.
MU recommends the following inlight of this new policy:
o File extension petitions as early as possible
o Use premium processing service to ensure a quickdecision
o Employees who are porting from one H-1B employerto the next may want to wait until the new H-1B case is approved to resign andbegin work with the new employer
o F-1 to H-1B applicants should maintain theirunderlying OPT, including STEM OPT, until H-1B approval
o Those applying for green card through adjustmentof status (AOS) should maintain their underlying status until AOS is approved
o Foreign nationals should keep their addressup-to-date with USCIS, even when leaving the US
Finally, this policy is expectedtake the focus of USCIS from adjudicating petitions and to create lengthierdelays. MU will alert clients once thememo has been implemented.