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UNITED STATES – New Policy Threatens Deportation If Visa Extension is Denied

, 01/08/2018

On 28 June 2018, United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum providing guidance on Executive Order 13768 on the enhancement of public safety through immigration policies. The policy, originally intended to take effect by 28 July 2018, will now be implemented once operational guidance has been issued.

The new policy expands the issuance of Notice to Appear (NTA) documents, the beginning of formal deportation proceedings, to foreign nationals who are denied a visa extension or change of status or whose visa expires during an application.

This policy applies to foreign nationals including those on H-1B specialty occupation visas and students on F-1 visas.

Currently, NTAs are typically issued when a foreign national is a national security concern or when an NTA is required by statute or regulation. Foreign nationals whose visa benefits are denied are advised voluntarily to leave the country.

If foreign nationals leave the United States voluntarily after receiving an NTA without appearing before the immigration judge, their case may be adjudicated in absentia, which may limit their ability to apply for visas in the future.

Action Items

Employers of foreign nationals in the US are advised to carefully audit the visa statuses of their foreign national employees.