October 30, 2017
The USCIS announced another policy change on October 23, 2017, in its ongoing efforts to tighten immigration to the United States. The new policy directs USCIS officers to process petitions for extensions of nonimmigrant visas under the same manner and scrutiny as initial petitions for nonimmigrant status.
The new USCIS policy specifically cancels two USCIS policies issued in 2004 and 2015 regarding the processing of a petition to extend a nonimmigrant visa, such as an H-1B work visa, L-1 work visa, E treaty visa, etc. Under the previous policies, USCIS officers were instructed to give deference to the prior approvals when processing petitions for extensions that involved the same parties and underlying facts. In other words, the policy stated that USCIS officers should generally grant extensions when the Petitioner, Beneficiary and job details were all the same as the previous petition.
In rescinding this policy, USCIS officers are now specifically instructed to process petitions for an extension in the same manner and level of scrutiny as an initial petition for classification for nonimmigrant status. As such, a previous approval for a nonimmigrant status, such as an H-1B or L-1 visa, no longer signals that an extension will likely be granted even when the petition involves the exact same parties and situation as the prior petition.
The new policy states that “[i]n adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The burden of proof in establishing eligibility is, at all times, on the petitioner…even where an extension of nonimmigrant status is sought.” USCIS Policy Memorandum, “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Nonimmigrant Status” (Oct. 23, 2017).
This heightened approach to processing extension petitions certainly means that applicants must now more fully document and prove their continued eligibility for their nonimmigrant status. The policy specifically notifies USCIS officers that “…they should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension….” Id. It is therefore anticipated that petition processing times will be longer and more cumbersome as this policy will likely increase the number of Requests for Evidence in the processing of extension petitions.
This new policy is in line with the President’s agenda of restricting immigration to the US under the guise of protecting the interests of US workers. It demonstrates that individuals must ensure that they have competent legal counsel that is familiar with the intricacies of the immigration laws because this restrictionist policy could lead to a denial even when there has been a previous approval.
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