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.
