by Elton Gomes
Numerous H1-B visa holders could be facing deportation proceedings if their application for a visa extension or change in status gets rejected and the tenure of stay permitted originally by the US has expired. In addition, H1-B visa holders will have to stay in the US for several months, depending on when their case is heard by an immigration judge.
A policy memorandum, dated June 28, was released within the public domain last week. This memorandum allows the US Citizenship and Immigration Services (USCIS) to issue “notices to appear” (NTA) to visa holders in cases “whereupon denial of an application or petition, the applicant is ‘unlawfully present’ in the US”. The issue of such a notice indicates the start of deportation proceedings, the Times of India reported.
The memorandum further stated that, under the new rules, USCIS officers are now permitted to issue an NTA for a wider range of cases wherein the individual can be evicted and there is evidence of fraud, criminal activity, or where a visa application is not granted an immigration benefit and is illegally present in the US.
“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,” an IT company’s immigration counsel said, as per the Times of India.
In an interview with Forbes, Jennifer Minear, a director in the immigration practice group at McCandlish Holton, explained the ways in which the new policy is different. Minear said that, in the past, USCIS referred matters of potentially removable foreign nationals to Immigration and Customs Enforcement (ICE) to gauge whether deportation proceedings should actually commence.
“However, under its new policy memorandum, USCIS has greatly expanded its mandate for issuing NTAs without first consulting ICE,” Minear said in the interview, as per a report in Business Today. She added that the USCIS can now issue an NTA on its own accord, and “place individuals in removal proceedings upon denial of an application or petition for immigration benefits if the person is deemed removable at the time of the denial,” Business Today reported.
H1-B visas over the past
In September 2017, a senior US official claimed that India should not be concerned about any H1-B restrictions, and that the visa programme was being “reviewed” by the Trump administration. The official further said that there might not be “restrictions” in place.
However, H1-B visa holders were uncertain about their future as the Trump administration was considering regulations to prevent extension of H1-B visas in January 2018. The new regulations were largely aimed at those used by Indian IT professionals and were part of Trump’s “Buy American, Hire American” initiative.
An estimated 500,000 to 750,000 Indian H-1B visa holders faced the risk of being sent home if Trump decided to okay the proposal. An official from Immigration Voice, an advocacy body in San Jose, said, “If implemented this could lead to large-scale deportations, mostly of Indians, throwing hundreds and thousands of families into crisis,” Hindustan Times reported.
The uncertainty in issuing H1-B visas, and extending them, has been a significant matter of concern for a large number of Indian techies. President Trump’s stringent “America First” policy has led to a decline in the numbers of H1-B visas. According to Business Today, a significant decrease was reportedly visible in the number of H1-B applications filed by Indian tech firms. “Indian consulting firms, which have been accused of flooding the system with applications, have dramatically reduced their filings,” the San Francisco Chronicle reported. The report added that H-1B visa applicants are anticipating the toughest process in many years, as per Business Today.
On a trip to New Delhi in June 2018, MaryKay L. Carlson, the US Deputy Chief of Mission (DCM), said that there were no “big changes” in the H1-B visa programme. “There have been no big changes in the H-1B programme and nothing new on H-4…,” Carlson told the press. However, the current situation certainly seems contradictory to what Carlson had to say.
India will look to ease the new H1-B visa rules, and will have to utilise their diplomacy to make things easier for Indian H1-B holders. Perhaps India’s invitation to Trump to be chief guest at the 2019 Republic Day could bring about some change.
Elton Gomes is a staff writer at Qrius.
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