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.
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
- USCIS 2018 Policy Memo on NTA – Updated Guidance
- USCIS Press Release USCIS Policy Memo on NTA
- Original USCIS Policy from 2011 on NTA Issuance