U.S. Citizenship and Immigration Services (USCIS) has annouced updated policy guidance, which now instructs immigration officers to apply the same level of scrutiny to both initial visa petitions and visa extension petitions in certain nonimmigrant categories, including the H-1B visa. This new policy rescinds the current practice which instructs officers to give “deference” to the findings of a prior approved visa petition when adjudicating petition extensions (i.e. visa renewals), as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination.
This new policy will impact all employers who are seeking to file an extension of a nonimmigrant visa for any of their international employees. In particular, those individuals who may currently be on an H-1B, L-1A, L-1B, O-1, E-3, or other nonimmigrant visa will likely face increased scrutiny in the adjudication of their petition to extend/renew their visa. Based on this new USCIS guidance, employers should prepare to demonstrate and document each and every eligibility criteria for a particular visa, as if they are filing a new petition. This new policy, along with the recent announcement requiring in-person interviews for individuals seeking employment-based green cards, may also continue to lead to delays in visa processing.
This change, once again, appears to fall in line with President Trump’s “extreme vetting” immigration plans. Nevertheless, it should always be the practice of a qualified immigration attorney to file all visa petitions (including visa extensions) as a standalone petition, evidencing how the Beneficiary and Petitioner meet the eligibility criteria for the visa. Even more so now that USCIS may use this policy to essentially re-adjudicate the initial visa petition when adjudicating visa extension petitions. Employers and applicants should therefore work closely with counsel to provide substantial documentation of compliance with the current terms of employment (i.e. worksite information, salary, job duties, etc.), along with evidence of maintenance of immigration status and the job that will be performed during the requested visa extension time period. Our office will continue to monitor the rollout of this new policy.