Notice to Appear H1B USCIS L1 Impact

News : USCIS New Notice to Appear (NTA) Policy Memo – H1B, L1 Impact ? Avoid ?

In H1B Visa News by Kumar23 Comments

USCIS issued a new policy memo on July 5th with effective date of June 28th , with updated guidance on issuance of Notice To Appear ( NTA). This policy memo gives authority to USCIS to issue NTA without consulting Immigration and Customs Enforcement (ICE) for general Employment based petitions like H1B, L1. It has some dire consequences for work visa holders in US, if their extension petition gets denied and their I-94 has expired. Let’s look at some of the details of this updated guidance policy memo to issue NTA from H1B, L1 visa holders’ perspective.

Firstly, why this New Policy Memo for issuance of NTA ?
USCIS is issuing this new policy memo for issuance of NTA in accordance with current administration’s priorities as President  Trump signed an Executive Order in Jan 2017, to enhance the public safety in the interior of United states. The executive order signed set forth Trump administration’s immigration policies for enhancing public safety and outlines priorities to remove aliens/ internationals from US.

Before we jump in, let’s look at the background and understand on NTA and previous policy.

What is Notice to Appear (NTA) ?  How does it Look ? What all does it have ?
Notice to Appear(NTA) is a charging document that is issued by agencies like DHS, CBP, ICE or USCIS to place an individual into deportation proceedings. It is basically a court summon for you to appear before an immigration judge to defend/accept charges related to your case. The NTA document tells the reason for issuance as shown below. Depending on your situation, the relevant check box would be selected for NTA issuance and there will be explanation of why you were issued NTA and then it includes address, time and date for the court proceedings.

Notice to Appear - NTA - Sample USCIS ICE and DHS

Can I skip the court date and not appear in court and pretend that I never received NTA ?
You must appear in front of judge, if you were issued NTA as it is a court summon. If you do not appear in front of judge in court, you will be issued a deportation order and you could end up in 5 to 10 year bar to re-entry of US. Also, your other visa approval chances to arrive in US would be in trouble, so, you should not take the NTA easily and ignore it.

What was the original USCIS Policy Memo from 2011 on issuance of Notice to Appear (NTA) ?
The original policy for issuance of NTA by USCIS from 2011 was in scenarios, where USCIS finds that a case falls under categories of national security concern, fraud, or required by statue or regulation, criminal cases, etc.

Now that we know the background on NTA and old policy, let’s look at new policy and impact.

What is the New USCIS Guidance for NTA issuance as per New Policy Memo ?
The new policy memo includes all of the previous scenarios, and also includes a new scenario called “Aliens Not Lawfully Present in the United States or Subject to Other Grounds of Removability”. The new scenario tells that USCIS will issue NTA, if an application/ petition or benefit request is denied and the alien/individual is not lawfully present in US (meaning I-94 is expired situation or out of status).

What is a common H1B, L1 situation, which falls under the new Policy and can get NTA ?
One common scenario is to file H1B or L1 visa extensions around 2 to 3 months before expiry, where your I-94 would also be set to expire after 2 to 3 months. With the current USCIS processing times, for regular processing, the extension application will not be adjudicated ( have decision) before 3 months or your I-94 expiry date.  The current policy allows the individual with pending H1B extension petition to stay in US and work for up to 240 days. This period of 240 days is referred as “period of stay authorized by the attorney general” and it will continue until the petition is approved. All along this period of waiting for decision, even after expiry of I-94, the individual is considered to be maintaining proper current H1B or L1 status until the decision is made. If a denial decision is received for the case, “period of stay authorized by the attorney general”, ends on the day of denial and the individual falls out of status and starts adding “Unlawful presence in US from that day of denial”. Under the new guidance,  USCIS can issue  NTA, when the petition is denied based on unlawful presence clause as the individual’s I-94 has expired.

What is the impact of this New NTA Policy for H1B, L1 visa holders ?
The impact is pretty dire, if H1B or L1 petition’s extension end up in denial and the I-94 of such individual has expired, because you will be issued NTA for unlawful presence . If you were issued NTA, you cannot leave the country and you should appear in front of Immigration Judge in court. If you fail to appear in court, you will get deportation order and you can get a bar of 5 to 10 years for re-entry to US and have issues for getting other visas too. So, not worth it.

Can you appeal your Denial of the case with USCIS, when you were given NTA ?
Yes, you can appeal your case and work for USCIS to review the decision based on new evidence submitted, etc. But, you cannot work during this period as your petition was denied and you need to wait for USCIS for the decision. If the decision from denied is changed to approval, USCIS will very likely remove NTA and you can again start working…but, until that happens, you are in limbo.

What can you do to avoid NTA issuances for H1B, L1 visa holders ?
The simple thing to do is file for H1B, L1 extensions much ahead of time as you can file petition up to 6 months before expiry and possibly go for premium processing, if getting delayed, so that your I-94 is valid, even if the decision is not favourable for you and you need to appeal or reply to RFE, etc.

What is not very clear ? Wait and see.  
This NTA guidance is quite new and we do not know how USCIS will handle issuance of NTA.  What is not clear is : Will they give NTA on the same day of denial or will they send later ?  If they send later and candidate is not in US, how it will work ? How will USCIS handle this whole thing is not clear as these are many unknowns. We need to wait and see how AILA and other immigration attorney’s community will react and handle this with USCIS.

Update : On July 30th, 2018 USCIS issued an alert indicating that the implementation of this policy memo to issue NTA is postponed until the operational guidance guidance is issued by USCIS. This operational guidance will be issued within next 30 days.

What do you think of the new policy memo on NTA ?  Any other things that I missed ?
You may read recent USCIS new policy on Denying without RFE, NOID

Reference:

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Comments ( 23 )

  1. SudRa

    Hi Admin Team,

    Did they mention in the alert saying that “Operational guidance will be issued in 30 days” , i think they mentioned the standard time is 30 days .and which has already crossed..or am i missing something here..

    -SudRa

    1. administrator
      Kumar

      No, the alert of USCIS regarding NTAs was given on July 30, we still have time till Aug 30. ( FYI, The original one came in June 28, but the alert came later, so we take the later alert date)

  2. TK

    I am sure many have been caught off guard with this new rule. Is there anyone case that has been heard of getting NTA so far? Is there any more clarity regarding this new rule for I-94 expired cases?

  3. Sankar

    Hi Admin Team,

    I need your help for understanding this overall all scenario.

    e.g. Current I-94 Expiring on August 15
    Normal Extension submitted on August 01
    US Denied the application on Dec 30th (After RFE)

    Does the days spend after August 15 Onwards count as the unlawful presence
    Or Does the days spend after Dec 30th will count as unlawful presence?

    Also, In my office, i have seen a couple of denials after this policy but none of them received NTA, Does the NTA come after employee leave to INDIA ?

    1. administrator
      Kumar

      Your stay after August 15th is considered unlawful presence. Well, we are yet to see how USCIS will process these NTAs. We do not know, when they will send NTAs..

      1. Sankar

        thanks for the reply.

        So in this way, they are marking the backdate as illegal. This is certainly not good.

        Also if someone got RFE and volunteering moving out of the country before final Denial decision.
        Is the NTA applicable for that person because the person is not in US before while a decision.

        1. NTA_Scary

          Basically they don’t want to encourage more immigrants.. As simple as that…Lets all accept and reality and move on instead of telling what is right or what is wrong ..If you are not invited somewhere better not to go ..!

  4. Sharath

    Thanks for the info, I am also looking for the same information which is mentioned as not very clear. please let me know if you have any info on when these things will be more clear.

  5. kalia

    As per USCIS gudelines at : https://www.uscis.gov/sites/default/files/USCIS/Resources/C1en.pdf

    you do not accrue “unlawful presence” for purposes of
    inadmissibility under section 212(a)(9)(B) So how is this new NTA rule applicable when one has already filed petition before i94 expire

    1. administrator
      Kumar

      The FAQ at that link relates to old policy memo and is from 2016. Now, with the new policy memo from 2018, NTA can be issued as rule has changed.

      1. kalia

        But Updated policy Memo States : Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

        And according to old memo , we are not unlawfully present because we have already filed H1b Extension before i94 expires and we are in 240 day rule

        1. administrator
          Kumar

          Read the content in the link again, it says “Your lawful nonimmigrant status ends, and you are out of status, when your Form I-94 expires, even if you have timely applied to extend your nonimmigrant status.” That means that, even as per old rule, you will be technically out of status, if you petition approval is denied. With new memo, as you are out of status, it makes you eligible to get NTA. In the past, you were able to cease employment and leave US immediately, but now you would get NTA.

          1. kalia

            But we are out of status but there is no “unlawful presense ” Old Memo says :

            “Even though you are not actually in a lawful nonimmigrant
            status, you do not accrue “unlawful presence” for purposes of
            inadmissibility under section 212(a)(9)(B) of the Immigration and
            Nationality Act, while your extension of status application is pending
            if it was filed prior to the expiration of your Form I-94.”

            and According to new Memo

            Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

            So Techincally person is not in unlawful presense

          2. administrator
            Kumar

            kalia,
            No, that line of “do not accrue unlawful presence” is only for the purpose of the 212(a)(9)(B), which is only related to re-entry to US. You can read more details of that at : https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-17138/0-0-0-18383.html

            The key info is ““Your lawful nonimmigrant status ends, and you are out of status, when your Form I-94 expires”, that is the thing that makes eligibility for NTA.

  6. H1B_NTA_scary

    So with this new rule, better to stay inside the country until our i94 expires .
    If we have little doubt on our extension application that it may get rejected, better plan to leave country before i94 expires, and return with approved petition and stamped visa ..Does this makes sense ?

    1. kalia

      Thanks, So if i have filed H1b extension before i94 expiry and now this rule has kicked in . Should i stay here and wait for RFE/Apporval/Denial or should i leave asap. My Employer is saying stay here

      1. administrator
        Kumar

        Well, your employer/immigration attorney are the best ones to advice you, ask additional details and you know the consequences and then take a decision

  7. Sandhya

    I have applied for My L1B Extension and my I-94 is already expired and as per new guidelines if my petition gets rejected then i may get NTA.
    Now, should i wait for more clear guidelines from USCIS before i take any action.?

    Or should i Go back and let USCIS reject my petition and apply for a fresh extension from home country?

    Or Should i wait for my petition result and Leave the country immediately (in a day or two) if i get a rejection notice.

    Please suggest.

    1. administrator
      Kumar

      Well, if it gets rejected, you could get NTA. Well, you may wait, but it is unclear on how USCIS will issue these NTAs. Once you get a rejection and you are in country, you are already not in status and would get NTA. Talk to your immigration attorney and then take a decision.

  8. Go ahead and delete this comment also

    >> What do you think of the new policy memo on NTA ? Any other things that I missed ?
    Does it matter? You keep deleting all comments. You live in USA and curb freedom of speech. pathetic!

    1. administrator
      Kumar

      We do not delete all comments. Anything that violates comments policy like obscene language, groupism, troll, etc. is moderated.

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