Although it has not received as much news coverage as travel bans and the DACA decision, the administration has also been making it harder for companies utilizing the legal immigration system. The latest example came at the end of October, when the United States Citizenship and Immigration Services released a Policy Memorandum stating that officers will no longer give deference to prior determinations in petitions for extension of nonimmigrant status. The news impacts H-1B, L-1 and other nonimmigrant categories.
Previously, USCIS adjudicators were instructed to give deference to the agency’s previous decisions absent findings of fraud or changed circumstances. This gave employers a measure of certainty that they would not face the prospect of losing their existing employees at the time of visa renewal.
The new Policy Memo rescinds a 2004 guidance titled, “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity,” which directed adjudicators to defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and underlying facts as the initial petition. The Policy Memo also rescinds a portion of a 2015 memo titled, “L-1B Adjudications Policy,” which also directed adjudicators to give deference to renewals within the context of the L-1B petition.
The memo, which was effective immediately, justified the decision by stating that the 2004 memo put the burden on USCIS officers, when the burden of proof in establishing eligibility should always be on the petitioner under INA § 291. The memo suggests the previous guidance was “impractical and costly to properly implement.”
Now, adjudicators are instructed not to “feel constrained in requesting additional documentation in the course of adjudicating a petition extension, consistent with existing USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits.”
What does this mean for petitioners? It’s likely that USCIS officers will be filing more Requests for Evidence, a trend that started with the issuance of the president’s “Buy American, Hire American” executive order. Moreover, as we have seen with cap H-1B visas over recent months, visa applications that were traditionally approved are now facing increased scrutiny. This could cause uncertainty for foreign nationals applying for renewals, as well as their employers. As such, petitioners will need to act faster than they did in the past in applying for a renewal, because, essentially, petitioners will be starting from square one when they apply for renewal. As such, employers should be prepared to provide more documentation and face more scrutiny for new and renewed visa applications.
If you need help navigating an extension request, or have a question on corporate immigration law in general, please give me a call.
Brad Hendrick leads the immigration law practice at Caplan and Earnest LLC. He may be reached at firstname.lastname@example.org or 303-443-8010.