‘Policy could lead to horrendous situation’
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.