Tuesday, August 7, 2018


On June 28, 2018 the USCIS issued a memo regarding Notices to Appear (NTA) in a wider range of cases.  On July 30, 2018, the USCIS indicated this memo’s implementation would be delayed until further guidance regarding its administration can be issued.

Under the new memo, USCIS Officers are now mandated to issue (NTAs for cases where the individual is removable because there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the US.  An NTA initiates deportation proceedings and instructs the foreign national to appear before an Immigration Judge.  Even if issuance of the NTA is erroneous, there is a five year ban to re-entering the US if the foreign national departs the US while deportation proceedings are on-going.  NTAs will be sent to the employee’s last known address and not to the H-1B attorney.

Unlawful presence accrues if the previous I-94 card has expired from the date of denial of the new immigration petition forward.  For example, an H-1B worker is considered unlawfully present when the request for an H-1B extension is denied and the prior H-1B has already expired.

o   180 days to 364 days of unlawful presence results in 3 year bar of return to US
o   365 days+ results in 10 year bar of return to the US

This would most commonly apply to cases where the foreign national’s I-94 has already expired and their extension case denied.  For example: the employee’s I-94 expires on May 1; extension filed February 1, but is pending for 9 months until November.  In November the H-1B extension is denied.  The employee now has an expired I-94 card and is deportable.

Appealing the H-1B denial is generally not advised as the Appeals Office has a 90%+ rate of upholding the USCIS denials and a pending appeal does not stop accrual of unlawful presence or protect the worker from deportation. 

MU recommends the following in light of this new policy:
o   File extension petitions as early as possible
o   Use premium processing service to ensure a quick decision
o   Employees who are porting from one H-1B employer to the next may want to wait until the new H-1B case is approved to resign and begin work with the new employer
o   F-1 to H-1B applicants should maintain their underlying OPT, including STEM OPT, until H-1B approval
o   Those applying for green card through adjustment of status (AOS) should maintain their underlying status until AOS is approved
o   Foreign nationals should keep their address up-to-date with USCIS, even when leaving the US

Finally, this policy is expected take the focus of USCIS from adjudicating petitions and to create lengthier delays.  MU will alert clients once the memo has been implemented.

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