New rule allows deportation if H-1B extension is rejected
Visa Holder Must Appear In Immig Court
Lubna.Kably@timesgroup.com
Mumbai: 14.07.2018 TIMES OF INDIA
Many H-1B visa holders could find themselves facing deportation proceedings if their application for a visa extension or change of status is rejected and the tenure of stay granted originally by the US authorities (as reflected in Form 1-94) has expired.
To make matters worse, despite being without a job, they would have to stay on in the US for several months, waiting to be heard by an immigration judge. A policy memorandum, dated June 28, which came into the public domain last week, permits the US Citizenship and Immigration Services (USCIS) to issue ‘notices to appear’ (NTA) in cases “where upon denial of an application or petition, the applicant is ‘unlawfully present’ in the US” ( see case study inside). Such a notice is the starting point for removal or deportation proceedings.
According to an immigration counsel in 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, an NTA will be issued.” Notices for commencement of deportation proceedings that were restricted to cases relating to fraud, criminal charges or denial of asylum or refugee status, now stands widened.
Majority of H-1B holders are on extended visas
Snehal Batra, managing attorney, NPZ Law Group, says “Once an NTA (notice to appear) 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.”
Earlier on being denied an H-1B extension, the concerned employee 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 7 lakh cases.
Typically, majority of the 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 2 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 concerned individual can leave only after an immigration judge grants voluntary departure. As the dockets of these judges are backlogged, it can take a few months to get a first hearing and then qualify for a voluntary departure,” says Cyrus D Mehta, managing partner of Cyrus D Mehta and Partners, an immigration law firm.
In case of H-1B workers, the trigger for denial of visa extension, would typically result in an NTA being served. The two are intricately linked in more ways than one.
Mehta explains: “After denial, the erstwhile H-1B worker starts accruing unlawful presence. If the grant of voluntary departure is issued more than one year from the date of denial, there will be a ten-year bar to re-entry.” The denial of extension of the visa by the USCIS can be appealed against, but this itself is time consuming. Assuming that, the denial is reversed, the immigration judge may drop the deportation hearing, or the individual can move court for termination of the deportation process.
Case study: 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.
For full story, www.toi.in
THE BIG HURDLE
Visa Holder Must Appear In Immig Court
Lubna.Kably@timesgroup.com
Mumbai: 14.07.2018 TIMES OF INDIA
Many H-1B visa holders could find themselves facing deportation proceedings if their application for a visa extension or change of status is rejected and the tenure of stay granted originally by the US authorities (as reflected in Form 1-94) has expired.
To make matters worse, despite being without a job, they would have to stay on in the US for several months, waiting to be heard by an immigration judge. A policy memorandum, dated June 28, which came into the public domain last week, permits the US Citizenship and Immigration Services (USCIS) to issue ‘notices to appear’ (NTA) in cases “where upon denial of an application or petition, the applicant is ‘unlawfully present’ in the US” ( see case study inside). Such a notice is the starting point for removal or deportation proceedings.
According to an immigration counsel in 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, an NTA will be issued.” Notices for commencement of deportation proceedings that were restricted to cases relating to fraud, criminal charges or denial of asylum or refugee status, now stands widened.
Majority of H-1B holders are on extended visas
Snehal Batra, managing attorney, NPZ Law Group, says “Once an NTA (notice to appear) 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.”
Earlier on being denied an H-1B extension, the concerned employee 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 7 lakh cases.
Typically, majority of the 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 2 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 concerned individual can leave only after an immigration judge grants voluntary departure. As the dockets of these judges are backlogged, it can take a few months to get a first hearing and then qualify for a voluntary departure,” says Cyrus D Mehta, managing partner of Cyrus D Mehta and Partners, an immigration law firm.
In case of H-1B workers, the trigger for denial of visa extension, would typically result in an NTA being served. The two are intricately linked in more ways than one.
Mehta explains: “After denial, the erstwhile H-1B worker starts accruing unlawful presence. If the grant of voluntary departure is issued more than one year from the date of denial, there will be a ten-year bar to re-entry.” The denial of extension of the visa by the USCIS can be appealed against, but this itself is time consuming. Assuming that, the denial is reversed, the immigration judge may drop the deportation hearing, or the individual can move court for termination of the deportation process.
Case study: 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.
For full story, www.toi.in
THE BIG HURDLE
No comments:
Post a Comment