New Rule: Nightmare begins to H-1B visa holders. Deportation if extension is rejected

MUMBAI: The H-1B visa holders have found themselves facing deportation proceedings if their application for a visa extension or change of status has been rejected and the tenure of stay granted originally by the US authorities (as reflected in Form 1-94) has expired. To make it worse, despite no longer holding on to a job, they would have to be staying in the US for several months, waiting to be heard by an immigration judge.

A policy memorandum, which dated June 28, came into the public domain last week, permits the US Citizenship and Immigration Services to issue “notices to appear” (NTA) in cases “whereupon denial of an application or petition, the applicant is ‘unlawfully present’ in the US”. Such a notice is just the beginning for removal or deportation proceedings.

According to an immigration counsel at an IT company, “It appears that all cases where an application for visa extension is denied, post expiry of the original tenure of stay that was granted, will be issued an NTA.”

Notices for commencement of deportation proceedings were prohibited to cases relating to fraud, criminal charges or denial of asylum or refugee status, but the ambit now stands broad.

On being served notices to appear (NTA), the haunting begins. “Once an NTA has been served, the individual must remain in the US and appear before an immigration judge. A failure to appear for removal proceedings carries a five-year ban on re-entry to the US,” says Snehal Batra, managing attorney, NPZ Law Group.

Earlier, on being denied an H-1B extension, the employee concerned could immediately return to India without the NTA-related hassles. His employers could reapply for a fresh H-1B in the next season.

“Even international students are not immune to deportation proceedings. Unauthorised employment, failure to enrol in classes or failure on part of the educational institute to update a student’s records could result in an unlawful status for students and issue of a NTA,” adds Batra.

Benjamin Johnson, executive director, American Immigration Lawyers Association, points out that the immigration court backlog, as of May 31, exceeded seven lakh cases. Typically, a majority of H-1B holders are not those on initial visas but on extended visas. Statistics show that during the 12-month period ended September 30, 2017, US authorities approved 3.65 lakh H-1B visa applications, of which only 1.08 lakh, or 29.5%, were for initial employment. Nearly two lakh Indians got visas for continued employment.

“The revised policy could result in a horrendous situation. As the H-1B extension has been denied, the employee can’t work, but he has to linger on in the US for several months to appear before the immigration court,” says the corporate counsel.

“Once removal proceedings have commenced, the individual concerned can leave only after an immigration judge grants voluntary departure,” says Cyrus D Mehta, managing partner of Cyrus D Mehta and Partners, an immigration law firm.

An H-1B holder can continue to live and work in the US for up to 240 days while the application for extension of his visa is pending as long as the extension application was filed prior to expiry of the tenure in his original H-1B visa.

If the application for extension is denied, the individual would be held as “unlawfully present” as on the date of denial and USCIS can issue an NTA and deportation proceedings will begin.

Visa extension applications can no longer be taken lightly as the denial rate, on various grounds, is on the rise. Says Rajiv S Khanna, managing attorney at Immigration. “USCIS takes more than six months to adjudicate an H-1B application . In many cases it is inevitable that the previous H-1B status will expire while the application is still pending. Thus, applications should be filed at the earliest. For extension of H-1B visas, applications can be filed up to six months before the expiry of the existing visa tenure. Second premium processing must be opted for, which is more expensive but entails a shorter processing timeline.”