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The new normal of H1B extensions: 'Take the kitchen sink approach, prepare the best possible application', says immigration attorney Cyrus Mehta

New York: Leading US immigration attorney Cyrus Mehta is making a strong case for H1B workers to file extensions at least six months ahead of expiry date and use premium processing for the same because the “new normal” of visa processing in America gives officers of the US Citizenship and Immigration Services extraordinary scope to slap denials and begin deportation proceedings without many of the interim processes involved earlier like a request for evidence (RFE), for instance. Yesterday’s worst case scenarios are today’s reality and denials of H1B extension requests have surged in the last 18 months. "Throw the kitchen sink at them", Mehta advised in a detailed conversation with Firstpost focusing on two recent USCIS policy memos (linked below) that have sparked a heightened level of anxiety among foreign workers in the US.

The July 13 USCIS memo on RFE and NOID

The June 28 USCIS memo on Notice to Appear

Excerpts from the conversation with Mr Mehta, lightly edited for brevity, are below:

"There has to be a real deficiency for officers to deny applications"
The concerns with regards to the July 13 memo are overblown. I don’t believe the USCIS can routinely deny applications just like that. There has to be a real deficiency for them to deny it. However I can see officers abusing their authority or stretching the interpretation if they believe there wasn’t sufficient initial evidence. That’s the key. Did you provide the initial evidence that is required? In an H1B based application, did you submit the degree certificates ? In a marriage based application, did you submit the marriage certificate? If these are not submitted, then there’s every possibility that the application will be denied without an RFE or an NOID.

"Avoiding RFEs entirely is going to be very difficult"

Representational image. AP

Representational image. AP

Avoiding RFEs entirely is going to be very difficult - especially in the Trump administration. Especially in IT occupations like computer analysts, financial analysts... They will get RFEs even if you prepare the best possible application. If the RFE does turn up, don’t panic - just have your employer and lawyer respond to it in an adequate manner. What you want to avoid under this new policy is an outright denial. Make sure that all the basic initial evidence is submitted. In an H1B case, you want to submit all the degree certificates and end client letters if you’re working at a third party site.

"NTA signals start of deportation proceedings"
If your application for an extension of status gets denied and your prior H1B status has expired, then they can issue a Notice to Appear (NTA) which signals the start of deportation proceedings. That’s theoretically always existed in law. What they’re saying here (that’s new) is that we can theoretically issue NTAs even for applications where the applicant was legally present prior to the denial.

"File as early as possible, you can file six months ahead"
Right now, the rule of thumb is you want to file as much in advance as possible before the expiration date and you can do that as early as six months ahead. I would advice employers to do two things: file six months in advance and on premium processing route. If the application gets denied without an RFE, you are still in status and then they can’t slap an NTA and start a deportation proceeding. This is the new reality and you have to deal now not just with the denial of an H1B but alongwith that, you have to deal with the removal proceedings.

"The June 28 memo is far more dangerous than the one on 13 July"
It really would hurt if you get a denial without an RFE. The28 June  memo is far more dangerous than the one on 13 July. If you now get a denial, you can also be put into deportation proceedings. You can always seek review of a denial but you cannot challenge it. An immigration judge has absolutely no jurisdiction in challenge of an H1B denial. What you have to do in the immigration court is ask for an extension or a continuation while the appeal is pending or you can try to seek a voluntary departure because remember, unlawful presence is still accruing. Under a technicality, you should be able to acquire voluntary departure before you acquire one year of unlawful presence. This is the key. The problem here is that the backlogs in the immigration court are mounting. It’s tough for those who fall out of projects. If you get fed up and leave while the hearing is pending and if the immigration judge orders you deported while you are absent, then you face a 10 year bar. This is the brave new world...

"Take the kitchen sink approach"
The people who should be worried are folks who have been here a long time and are applying for extensions for the 5th or 6th time because of a defect in a backlogged permanent residency system where it can take more than a 100 years to get a Green Card. Throw the kitchen sink at the USCIS in terms of explaining why you need an extension. The same formula applies even if you get an RFE. Be as thorough as you can possibly be. The tragedy here is that the USCIS and the Congress are supposed to grant benefits, they are not supposed to be an enforcement agency. That’s for ICE to do. What’s happening now is that the USCIS has somehow become an enforcement agency and probably much worse. They do have the ability under the law to issue NTAs. The people who get denials don’t want to hang around here anyway. This was a totally unnecessary policy, this was designed just to harass. Just think about it. Before the denial, they are not unlawfully present. The minute they receive the denial, they are placed in deportation proceedings!


Updated Date: Jul 26, 2018 00:33 AM

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