Department of Homeland Security Issues ‘Notices to Appear’ to H-1B Workers in Grace Period

There have been several reports recently of the Department of Homeland Security (DHS) issuing Notices to Appear (NTAs) for H-1B workers who were laid off by their previous H-1B employers, even though these individuals were within their 60-day discretionary grace period. The NTA is the first step in the removal (deportation) process, and can lead to serious immigration consequences, including forcible removal from the US, and a bar from reentering. It appears that the trigger for the NTAs in these cases has been the individual’s former employer submitting a withdrawal notification to the US Citizenship and Immigration Services (USCIS) during the grace period, before a change of status application or change of employer petition is filed. Although the majority of employers will wait until after the 60-day grace period before submitting withdrawal notifications, some employers do not. It is unclear at this point whether these reports on NTAs reflect a new policy on the part of the DHS, or are indicative of isolated training or technical issues.

What this Means for our Clients

We recommend that H-1B workers who have been terminated check with the employer to determine when it has submitted, or plans to submit, the regulatorily required withdrawal notification. Until there is clarity on this issue, we further recommend speaking with immigration counsel immediately if the withdrawal notification has been submitted or will be submitted prior to the filing of a new H-1B petition or change of status application. Non-citizens who have been issued an  NTA should also speak to immigration counsel immediately.

We will provide more information on this issue as it becomes available.