‘Pol­icy could lead to hor­ren­dous sit­u­a­tion’

The Times of India (Mumbai edition) - - TIMES NA­TION -

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 ap­pro- ved 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 these judges’ 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 DMe­hta, 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 reen­try.” The de­nial of visa ex­ten­sion of the visa by the US­CIS can be ap­pealed against, but this 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.

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