In our previous blog, we explored how some H-1B visa holders are receiving Notices to Appear (NTAs) even while still within their 60-day grace period. We now have sufficient evidence to confirm that this trend is not anecdotal—it is happening, and it is serious.
At Ahluwalia Law Offices, we are hearing directly from H-1B visa holders who, despite timely filing an H‑1B transfer petition and maintaining valid status, have been issued NTAs and are now facing removal proceedings.
This blog provides preliminary legal guidance for those individuals—and introduces two key legal tools that may apply to their defense: motions to dismiss and motions to terminate.
First, a Quick Recap: What Is an NTA?
A Notice to Appear (Form I-862) initiates formal removal proceedings against a noncitizen. Once filed with an immigration court, it signals that DHS is alleging the individual may be deportable or inadmissible. Common grounds cited include unlawful presence, visa violations, or status expiration.
But in some recent cases involving H-1B professionals, the facts don’t appear to support such grounds. This makes the situation ripe for a legal challenge.
Motion to Dismiss vs. Motion to Terminate: What’s the Difference?
Both motions are ways to stop or end removal proceedings, but who files them—and why—differs.
Motion to Dismiss
- Filed by government attorneys (e.g., DHS trial counsel)
- Based on errors, lack of evidence, or policy discretion
- Governed by 8 CFR § 1239.2(c) and 8 CFR § 239.2(a)
- Must be made after proceedings have started and filed with the immigration court
- Results in dismissal without prejudice, meaning DHS may refile if conditions change
Motion to Terminate
- Filed by the respondent or their attorney
- Requests the Immigration Judge to end proceedings because the individual is not removable as charged
- Treated under 8 CFR § 1239.2(b) and applicable EOIR regulations (8 CFR § 1003.18(d))
- May be based on evidence such as:
- Valid pending H-1B transfer petition
- I-94 indicating lawful presence
- Proof of employment or status maintenance
In short:
–A motion to dismiss is a way for the government to correct or withdraw charges.
–A motion to terminate is how you assert that you should never have been placed in removal proceedings in the first place.
What Happens After the Motion Is Filed?
- If the Immigration Judge agrees, they will issue a written order of dismissal or termination, and the proceedings will end.
- If an NTA is canceled or proceedings are terminated, any warrant of arrest is also canceled under 8 CFR § 1239.2(e).
- Importantly, filing or receiving an NTA does not automatically accrue unlawful presence, per 8 CFR § 1239.3.
When Should H-1B Holders Consider These Motions?
If you received an NTA while:
- Awaiting adjudication of a validly filed H-1B transfer petition,
- Still within your I-94 validity period,
- Employed with an authorized petitioner,
- Or if the NTA includes inaccurate or unsubstantiated charges,
… then you should immediately consult with an experienced immigration attorney about filing a motion to dismiss or terminate proceedings.
A Word of Caution from Pallavi Ahluwalia:
“We are actively reviewing cases where H-1B holders have been issued NTAs despite being in valid status. In many of these instances, critical details are missing—such as whether the prior employer withdrew the petition, or whether the I-94 had already expired. It’s imperative that individuals in this situation understand their legal options. Filing a motion to terminate may be your best—and fastest—path to preserving your immigration status.”
What Should You Do Now?
- Do not ignore the NTA. You are being summoned to immigration court.
- Engage an attorney immediately. Legal representation is critical at this stage.
- Gather all evidence of status: I-94, USCIS receipt notices, job letters, and travel history.
- Explore both motions as early options—they can stop proceedings before they escalate.
If you’ve received a Notice to Appear or believe you may be at risk, consult an immigration attorney to evaluate your options and determine the best course of action based on your specific circumstances. ‘
To book consultation with Ahluwalia Law Offices P.C visit- www.ahluwalialaw.com/consultations
