According to a recent new guidance regarding issuances of Notices to Appear (NTA), USCIS will greatly expand its mandate for issuing NTAs without first consulting Immigration and Customs Enforcement (ICE). USCIS officers will now issue NTAs and thereby place individuals in removal proceedings upon the denial of an application or petition for immigration benefits if the individual is deemed removable at the time of the denial.

What does this new guidance change about NTAs?

Prior to this policy change, if an application or petition for immigration benefits was denied, the foreign national had the ability to depart from the U.S. and either remain abroad or attempt to obtain approval for another visa to enter into the U.S. When an individual receives an NTA, however, they are automatically placed in removal proceedings and are legally required to remain in the U.S. and appear before an immigration judge. He or she is not legally allowed to depart from the U.S. after the issuance of an NTA.

What happens if a foreign national fails to appear in removal proceedings following an NTA?

If a foreign national fails to appear before an immigration judge following an NTA, then a deportation order will be issued against the individual and a 5-year bar on re-entry to the U.S. will be implemented. Additionally, having a record of deportation from the U.S. is likely to impact a foreign national’s ability of being approved for another visa in the future.

What happens if a foreign national complies with removal proceedings following an NTA?

If a foreign national complies with the NTA and remains in the U.S. to contest the removal proceedings, he or she will be considered “unlawfully present” according to U.S. immigration law during the entirety of time that he or she is in removal proceedings. Currently, because of a significant backlog in immigration courts, a foreign national may be in removal proceedings for several years. If the foreign national wins in the removal proceedings, his or her status will be restored and he or she will no longer be considered “unlawfully present.” However, if the foreign national loses in the removal proceedings, he or she may be subject to a 10-year bar on re-entry to the U.S.

Does this new policy affect H-1B beneficiaries?

Yes. An H-1B beneficiary is permitted to continue living in the U.S. and work for his or her sponsoring employer for up to 240 days while an extension of H-1B status petition is pending. Under current processing timelines that are impacted by severe processing backlogs, USCIS often may take over 6 months to adjudicate H-1B extension petitions (at least 180 days). Therefore, if USCIS takes longer than at least an extra 2 months (60 days) to adjudicate the H-1B extension petition – an entirely possible prospect – the H-1B beneficiary will be no longer have any underlying status of lawful presence in the U.S. If the H-1B extension petition ultimately receives a denial, the H-1B beneficiary and family members would be deemed “unlawfully present” on the date of the denial and would be issued an NTA by USCIS and placed into removal proceedings.

While in removal proceedings, an H-1B beneficiary will no longer have legal authorization to work and will be unable to leave the country without triggering the 5-year bar on re-entry to the U.S.

Does this new policy affect L-1A beneficiaries?

Yes. Multinational managers or executives under L-1A status who are applying for a green card immigrant petition may be impacted by this new policy. When L-1A beneficiaries apply for a green card, their employers must file an immigrant petition on their behalf. The processing times for the immigrant petition adjudications are very lengthy and may take several months. Similar to H-1B beneficiaries, if an L-1A beneficiary’s underlying L-1A status expires while his or her immigrant petition are pending and then USCIS ultimately denies the immigrant petition, the L-1A beneficiary and his family members would be deemed “unlawfully present” on the date of the denial and would be issued an NTA by USCIS and placed into removal proceedings.

While in removal proceedings, an L-1A beneficiary will no longer have legal authorization to work and will be unable to leave the country without triggering the 5-year bar on re-entry to the U.S.

What can foreign nationals and employers do in response to this new policy?

Due to this new policy, foreign nationals under work visas like the H-1B and their sponsoring employers should be mindful of the filing and adjudication of work visa petitions to ensure that a foreign national’s underlying status does not expire while their petition is pending.

Initial petitions and extensions for nonimmigrant visas are able to filed up to 6 months in advance of either the anticipated work start date or the expiration date of the current petition, respectively. Sponsoring employers should aim to file petitions at the earliest possible time and, if feasible, with a request of “premium processing” that requires that USCIS take action on the petition within 15 days of filing.

Employers that are sponsoring workers for immigrant petitions should aim for filing at the earliest possible date to ensure that the foreign national’s underlying work visa does not expire while the immigrant petition is pending.

Lastly, as an ultimate resort, both foreign nationals and sponsoring employers may need to consider filing mandamus actions against USCIS to compel the adjudication of the foreign national’s pending petition before his or her underlying status expires.

If you have any questions or concerns regarding this new policy or related matters, please do not hesitate to contact our offices.