Immigration Alert: NTAs Issued After H-1B Withdrawals — What Employers and Workers Should Know

Recent reports show a disturbing trend related to removal proceedings being initiated against H-1B workers following a termination of employment. Our office and our immigration colleagues have reported that some H-1B workers are receiving Notices to Appear (NTAs)—the document that initiates removal proceedings—following the withdrawal of their H-1B petition by their former employer. This has occurred even when the individual remains lawfully present in the United States, such as during the 60-day grace period or after timely filing a change of status application or H-1B transfer petition. Understandably, this troubling trends is causing great fear and confusion for both employers and the foreign national, most of whom have done nothing wrong and have complied with all legal requirements. 

What Is a Notice to Appear (NTA)? 

A Notice to Appear (NTA) is a document issued by the Department of Homeland Security (DHS) to initiate removal proceedings in immigration court. The NTA includes allegations that the individual is removable under U.S. immigration law and requires them to appear before an immigration judge. 

Once issued, the case becomes part of the removal system managed by the Executive Office for Immigration Review (EOIR). Resolving a case in immigration court sometimes takes years due to the growing backlog of cases. There are currently nearly 3.5 million cases in the immigration court backlog and only 700 judges nationwide to process them.  

Recent Reports on NTAs for H-1B workers:  

In several recent cases, H-1B workers have received NTAs shortly after their H-1B petition was withdrawn by a former employer, including situations where: 

• The individual was still within their 60-day grace period following termination of employment; or 

• A change of status or an H-1B transfer petition had already been filed and was pending; or 

• The individual departed the U.S. shortly after the end of employment, but the NTA was issued despite the individual being outside of the U.S. 

This appears to reflect a significantly aggressive posture by DHS, given that 8 CFR 214.1(l)(2) explicitly authorizes a 60-day grace period for H-1B workers following a termination. Specifically, the regulations state that “an alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion.” Previous longstanding USCIS policy had stated that “USCIS will not implement the June 28, 2018, NTA Policy Memo with respect to employment-based petitions at this time. USCIS will send denial letters for status-impacting applications, petitions, and benefit requests that ensure benefit seekers are provided adequate notice when their request for a benefit is denied. If applicants, beneficiaries, or self-petitioners are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA.” DHS is no longer recognizing this 60-day grace period, at least not in all cases.  

Relevant Background: H-1B Termination, Grace Period, and Status 

When an H-1B worker’s employment ends, the employer is required to notify USCIS and withdraw the H-1B petition. Under current regulations, the worker may remain in the U.S. for up to 60 days to seek new H-1B employment, file a change of status, or depart the U.S. 

During this period, the worker is not considered unlawfully present, and many remain in authorized stay while awaiting adjudication of a new petition or application. Under longstanding USCIS policy, such individuals are not typically placed into removal proceedings unless they otherwise warrant removal (e.g. certain criminal convictions, etc.) 

Recommendations for H-1B Workers 

If your employment has recently ended: 

• Track your grace period: The 60-day grace period begins the day after the last day of employment, not the date of H-1B withdrawal. 

• Act quickly: File a new H-1B transfer, change of status, or plan your departure within the grace period. 

• Maintain documentation: Keep records of your last day of work, USCIS receipt notices, and any travel records. 

• Monitor your status with USCIS and EOIR: Create a USCIS account and monitor its activity. If you have an A#, check your status with the EOIR immigration court system online.  

• Contact an attorney: If you receive an NTA or an I-862 ASC Appointment Notice for issuance of an NTA, consult with an immigration attorney immediately. 

Due Process and Administrative Efficiency Concerns 

Initiating removal proceedings for these individuals who are not violating the law strains an already overburdened immigration court system.  

This trend may deter highly skilled workers from choosing the U.S. as a destination and make it harder for U.S. companies to attract and retain international talent. Employers may also face uncertainty about how to manage compliance without putting former employees at risk and could also face serious disruption to their work force if this type of trend continues. 

While the issuance of NTAs in these circumstances is not yet widespread, the cases we are seeing suggest that we will be seeing more NTAs for H-1B workers who have had their H-1B petitions withdrawn.  

We will continue monitoring this trend and will provide updates as more guidance becomes available. If you or your company are affected, please contact our office to discuss options and next steps.