Notice to Appear H1B USCIS L1 Impact

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

In US Immigration - Visas by KumarUpdated : 44 Comments

USCIS issued a new policy memo 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. We cover all the details of this updated guidance policy memo to issue NTA from H1B, L1 visa holders’ perspective, including history of the timeline of the implementation. We will continue to update the timelines as it happen, you can come back anytime to this page for latest update and impact.

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.

USCIS NTA Policy Memo Updates and Timeline, Implementation Details – History: 

  • November 8th, 2018 ( Official ) : USCIS updated that from Nov 19th, they may issue NTAs for these denials involving certain Visa petitions filed for U, T, etc visa types. They clarified that at this point, they do NOT plan to implement NTA for employment based applications like H1B, L1, etc with this roll out. Read USCIS Press Release 
  • September 27th, 2018 ( Official ) : USCIS held a teleconference to clarify some of the rollout plans for NTA policy memo. They clarified that they there will be clear language in the denial letter saying their time to depart and NTA issuance situation. The applicants get 33 days as per standard time to file a motion/ appeal. Also, all applications of I-485 and I-539 are impacted that get denial after October 1st, irrespective of when they were filed. For more details, You can read the Summary of Teleconference NTA Roll out plans by USCIS , where we have a section for teleconference updates.
  • September 25th, 2018 ( Official ) : USCIS issued a press release on their rollout plans for NTA policy memo. They confirmed that it will be phased roll out approach and will only be implemented for I-539 ( Extend/ Change Status) and I-485 ( Permanent Resident / Adjust status Applicants )  and does not impact Employment based applicants like H1B or L1. You can read Summary of NTA October 1st Rollout Plan by USCIS
  • August 22nd, 2018 ( Unofficial – Not USCISA group of CEOs from Business Roundtable, which has CEOs from many major companies in US like Apple, HP, American Airlines, Chase. submitted a letter to DHS Secretary Nielsen outlining the issues with the new policy memos and highlight the NTA Policy as well and the uncertainty of the same. You can read the Business Roundtable Letter to DHS – NTA 
  • July 30th, 2018 ( Official )  : 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.
  • June 28th, 2018 ( Official ) : USCIS issued new policy guidance on issuance of NTAs. They added a new clause “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). Read more details on this in below article.

Before we jump in, let’s look at the some 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 the most recent update and How does it impact H1B and L1 Holders ? 

As of Sep 27th, 2018, USCIS mentioned in their press release and teleconference that the NTA policy memo that is effective from October 1st will only be applicable to I539 and I485 applicants and it will not impact the employment based visa holders like H1B or L1 that use I-129 form. USCIS mentioned that the denial letter would have details on the NTA issuance and that they should depart before specified time. We do not have samples or specific text of it yet.  Also, there are still some unknowns around, how you can check the status. In future, we may have NTA memo applicability to H1B and L1…but for now, it has no impact.

Does the New NTA Policy memo impact H4 visa, L2, O3 holders ? 

USCIS did not really clarify, if H4, L2 and O3 kind of visas situation that fall under employment based dependents would get NTAs…As there is no explicit clarification, we may assume that USCIS may issue NTA even for such forms or visa types.  The scenario could be you file for H1B ( I-129) and H4 with I-539 and ultimately you get denial after I-94 expiry for I-129 H1B along with I-539 denial for H4. Then the H1B holder will not be subject to NTA, but I-539 form H4 maybe subject to, this could be tricky. Work with your immigration attorney to avoid NTA situations.

Will NTA be given automatically for H4, L2 and other visa holders ?

As per the teleconference and guidance by USCIS, NTA will NOT be issued automatically when a denial is sent to the applicant. USCIS will wait for certain period of time until the expiration of the appeal or motion filed with them. In general, you can file a motion or appeal within 30 days and they add 3 days, if the petition is mailed. So, usually a total of 33 days. Check more details on How to Appeal on

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



Other Articles

Comments ( 44 )

  1. Buxma

    What are the chances of reentry into US on an h1b with a different employer if one accrues 3 months and 10 days of unlawful presence on an earlier h1b visa case? In this particular case there were big complications leading to overstay (employer negligence in visa filing, non-timely communication of status, financial liabilities to sort etc etc). What sort of proof can be presented to support such a case? What do you present to airport official once you secure the visa?

    1. administrator

      Well, you can share all the communication that you had with your employer and any documentation that tells the same. There is no checklist of documents. If it was a genuine issue and there are documents supporting the same, you can carry the same and explain the issue, if asked.

  2. Abeeba

    But if there’s base petition denial and you respond to rfe on another petition pending (filed before denial was issued but rfe responded to after base petition denisl) the unlawful presence starts accumulating at the time rfe is responded to on second petition. In this case can h1b get nta?

  3. Abeeba

    If there’s base petition denial on older h1b petition and there’s decision (with request for consular processing) pending on another h1b application, can denial of second application lead to issue of nta? If yes and person departs before issue of second denial, can they still be issued an nta and will it be considered valid nta?

    1. administrator

      NTA for H1B is not implemented yet. In general, you will NOT be issued NTA directly, you end up in that situation, if you overstay after denial and you will get guidance on the same.

  4. H1_extension

    I have applied for My H1B 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??

  5. Kumar

    Does this apply for B2 visa as well?
    Slightly related question. If a I-539 (extension) for B2 gets rejected, then is there any grace period that B2 visa visitor can stay after I-94 expiry? Or does it become illegal stay?

    1. administrator

      Well, we are yet to see how USCIS will implement this and if they provide such tool. So far, there is no online system that USCIS has mentioned about or shared. We just have to wait and see.

  6. Andy

    As of September 26th, 2018, USCIS mentioned that the NTA policy memo will only be applicable to I539 and I485 applicants. Still we are yet to get more details on what that exactly mean and how it will all work. There are still unknowns around, how you can check the status and how long do you get to depart. We need to wait for their teleconference and then maybe some details will come out.

    It is not applicable for H1B/ L1 visa? Can you please provide me a more detail ?

  7. Manish

    Hi Kumar,

    I have two queries?

    1. Today is 11- Sep, Is there any update on this? or this is null and void? or they can issue the guideline ( say for example on 15-Sep) and it will become effective immediately ( from 15-Sep), or it will become effective after 1 month ( say 15-Oct) ?

    2. My H1B/I-94 will expire on 30-Sep, If a denial decision is received on say 15-Nov, after I-94 expiry date and in “240 days period of stay authorized by the attorney general”, then on the day of denial and the individual falls out of status and starts adding “Unlawful presence in US from that day of denial”? Can you give me source of this or confirm this is true? or can I just leave country after denial without any consequence?

    1. administrator

      1. No new update. It is not null and void. We are just waiting for USCIS on implementation guidelines.
      2. Check out the policy document in reference with section title on page 7 “V. Aliens Not Lawfully Present in the United States or Subject to Other Grounds of
      But, the details of these are not fully given as we are waiting for the implementation guidelines from USCIS.

        1. administrator

          Yes, thats correct. Well, H4 dependent spouse may get NTA as it was not explicitly clarified in the teleconference. You get 33 days to depart before you get NTA…

  8. 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..


    1. administrator

      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)

  9. 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?

  10. 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

      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 ..!

  11. 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.

  12. kalia

    As per USCIS gudelines at :

    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

      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

          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

            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 :

            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.

  13. 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

        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

  14. 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

      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.

  15. 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

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

Leave a Comment

Comments Policy :
  • Comments are to drive conversation, add your thoughts, experiences, ask questions!
  • Do NOT write hate speech, swear words, or get into fight. Maintain etiquette
  • Enter your Name, valid Email, URL(optional - Facebook, LinkedIn profile URLs).
  • Your email will NOT be published. Do NOT post any phone numbers, email-ids
  • Do NOT post any links from other websites, unless official sites, University websites.
  • By submitting your comment, you agree to Term and Conditions of our website.