A growing number of H-1B visa holders are reporting receipt of Notices to Appear (NTAs) – the first step in deportation proceedings—after having their H-1B petitions withdrawn, often after employment is terminated. This emerging trend is creating significant concern within the H-1B community and among employers who rely heavily on hiring foreign talent. While not every H-1B withdrawal results in an NTA, it appears that those who have received an NTA had their prior H-1Bs withdrawn.
What’s Happening?
As reported by Business Standard, H-1B workers who have their H-1Bs withdrawn are increasingly being served NTAs by USCIS. The 60-day grace period, which was established in 2017, was previously seen as a protective window during which H-1B workers could find new employment or apply for a change of status (e.g., to H-4). However, USCIS now seems to be using its discretion to shorten this period by issuing NTAs quickly—sometimes even when the individual had a new H-1B approved before withdrawal or had left the country.
The situation raises questions about how USCIS and ICE are coordinating their policies and how the 60-day grace period is being enforced under current immigration priorities. This does not yet appear to be a widespread phenomenon, but the issuance of NTAs is notable and concerning.
What Should Employers Do?
Employers should proactively prepare for the possibility that terminated foreign nationals may be at risk.
Action Items for Employers:
- Do not assume a candidate with an NTA is ineligible to work. USCIS retains jurisdiction over H-1B cases, and if you file and get an H-1B approved for a candidate in proceedings, the court can terminate the case. Hiring such individuals is not only possible but may actually resolve their immigration issue.
- Advise H-1B candidates to wait for transfer approvals before notifying previous employers of resignation or withdrawal. This provides them with better protection against premature NTAs. However, this must be balanced against professional courtesy in terms of providing sufficient notice to the current employer.
- For laid-off H-1B holders, the safest option may now be to leave the U.S. and re-enter on a dependent or visitor visa—pending change of status applications filed while an NTA is pending may not be honored by USCIS or the immigration court. However, individuals who have received an NTA should not depart the U.S. without consulting an immigration attorney, as leaving while in removal proceedings may trigger a re-entry bar.
While the issuance of NTAs remains relatively limited in scope, it marks a shift in post-termination enforcement and reinforces the need for timely and strategic immigration planning. HR and legal teams should work closely with immigration counsel to monitor developments and protect both the company and its foreign national employees.