Since the start of his presidential campaign, President Trump has dominated the narrative around immigration with a focus on removing those unlawfully present in the United States. Headlines highlighting Immigration and Customs Enforcement (ICE) raids and arrests have gained national attention, focusing the conversation on the detention and removal proceedings of laborers, asylum applicants, and vulnerable populations that include women and children. The emphasis on an enforcement-first approach to immigration has quietly shifted its attention and is now targeting H-1B workers and placing them in removal proceedings, a move that has life-changing consequences for targeted individuals. Recent reports have circulated across the country that certain foreign nationals are receiving Notices to Appear (NTAs). The issuance of an NTA is a serious matter as it is the government’s first step to start removal proceedings against an individual. This disturbing trend is sparking fear among H-1B workers and leaving employers wondering what they can do differently to protect their workforce and how to proceed with H-1B cases going forward.
To understand how these NTAs are issued, it is important to note that employers who sponsor foreign nationals for an H-1B have an obligation to notify immigration of any material changes, including when an individual is terminated or resigns before the expiration of their H-1B status. The approval of an H-1B petition is also immediately and automatically revoked upon notification from the H-1B petitioner that the beneficiary is no longer employed. Employers who do not complete the H-1B and Labor Condition Application (LCA) withdrawal process may be liable for back wages. It is the employer’s obligation to pay the foreign national until both are formally withdrawn and the employee is notified. As such, it is understandable that an employer would aim to withdraw as close to the foreign national’s last day as possible.
NTAs are being issued in cases where the USCIS has received a request to withdraw the prior H-1B, and the individual is either within the discretionary 60-day grace period or has a pending H-1B with a new employer. USCIS asserts that the individual is out of status and unlawfully present in the U.S. The issuance of the NTAs does not seem to be consistently applied across similar fact patterns, which adds to the confusion. Are these cases being selected as test cases for the government to see how many result in a removal? Or are they an unlucky few that have been identified through AI or a keyword phrase to meet an NTA quota?
Under prior administrations, the withdrawal of the H-1B and LCA would generally not have adversely impacted a terminated foreign national due to the 60-day grace period. The grace period, per USCIS regulations, is afforded to H-1B holders who have been terminated or leave their employer before the expiration of their H-1B status. The individual could use the time to seek new employment, request a change of status, or depart the United States. Additionally, the American Competitiveness in the 21st Century Act (AC21) allowed individuals to change employers and begin work with the new employer as soon as the H-1B petition was filed and remained pending, a process known as H-1B portability. The issuance of the NTAs during the grace period or while the new petition is pending highlights a departure from prior practice and reinforces the Trump administration’s focus on immigration enforcement.
This shift in policy did not come out of nowhere. On February 28, 2025, USCIS issued a Policy Memorandum outlining when USCIS will issue an NTA, predominantly highlighting cases involving national security, criminal offenses, and fraud and misrepresentation. However, the memo makes a point to state that USCIS can exercise the use of prosecutorial discretion to issue NTAs as permitted under the Immigration and Nationality Act (INA), including circumstances where a petition or application is denied or revoked. As of June 2025, USCIS has issued NTAs to 26,700 individuals, or approximately 1,800 per week. At this point, it is unclear how many of those individuals had pending cases with USCIS at the time the NTA was issued. It remains to be seen how an already overburdened immigration court will handle these cases once they are called before immigration judges. Lawyers handling these removal cases report that the NTA is essentially pointless. The regulations still allow individuals to remain and work in the U.S. under H-1B portability. By the time the case gets to court, the person has filed a new H-1B, had their pending H-1B approved, or changed status, thereby making the NTA charge of removability unsustainable and the case is dismissed.
For employers who previously relied on H-1B portability to onboard a new hire, the question now may be what they can do to ensure that there isn’t an interruption to an individual’s ability to work. The most conservative position to take may be not to onboard an individual until the new H-1B is approved. This may mean waiting months for the case to be approved or paying additional filing fees to expedite a case under premium processing. For some employers, those options may not be feasible or particularly appealing, however, that may be part of the administration’s goal. The more obstacles and costs that are put in place to make it difficult to hire a foreign national, the less desirable it becomes to sponsor that worker. However, what these practices fail to take into account is the employer’s ability to work with counsel to create action plans and strategies for onboarding the best talent available. This can include paying to expedite cases, engaging in advocacy and litigation to hold USCIS accountable to the INA regulations in place that protect workers in these circumstances, and providing resources to workers who are issued an NTA.
The uptick in NTAs targeting H-1B workers signals a concerning shift in immigration enforcement that directly affects employers. While the legal grounds for many of these NTAs may not hold up in court, the disruption to individuals and businesses is real. Employers should proactively assess onboarding strategies, partner with experienced immigration counsel, and consider options such as premium processing or advocacy efforts. With thoughtful planning, it’s possible to navigate these evolving policies without sacrificing access to top global talent or exposure to unnecessary legal and operational risk.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the August 19, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
