The United States Citizenship and Immigration Services (USCIS) recently updated its policy guidelines as they relate to extension petitions for nonimmigrant workers. Previously, these extensions for H-1B visas were fairly routine and didn’t stir up much controversy or complication.This policy update, announced Oct. 23, could seriously change all of that, and employers of nonimmigrant workers should be concerned – wait times could become very long.
The policy update calls for USCIS officers to apply the same level of scrutiny to both initial petitions and extension requests for nearly every nonimmigrant visa category, including the popular H-1B option. Newly confirmed USCIS Director Lee Francis Cissna states in the press release:
“USCIS officers are at the front lines of the administration’s efforts to enhance the integrity of the immigration system. This updated guidance provides clear direction to help advance policies that protect the interests of U.S. workers.”
Compare & Contrast
Prior to the update, USCIS officers were instructed to defer to the determinations of already approved petitions if all the key elements remained unchanged and if there was no evidence of material error or fraud related to that approval. The policy update rescinds this instruction and determines that the burden of proof related to visa extensions remains with the petitioner/employer – irrespective of original approval.
In other words, each visa renewal will essentially go through the same process that the original petition did, rather than the rubber-stamp process formerly applied. Although the adjudicators may ultimately reach the same original conclusion regarding the viability of extension, the USCIS advises they are not compelled to do so and that approval is not the default starting position on such decisions.
This is going to be harsh on employers seeking H-1B extensions.
Get Ready to Wait
In the policy memorandum itself, the USCIS acknowledges that the requirements for extensions don’t necessitate further document submissions when the extensions contain no variance from the original petitions. This acknowledgment aside, however, the policy update goes on to relay that, while this regulation does govern submission requirements for filing petition extensions, it in no way limits (and, indeed, reiterates) theUSCIS' authority to request further documentary evidence.
If your company relies upon H-1B workers, you’re probably wondering what all of this means for you. It seems certain that this policy update portends much longer wait times and enhanced efforts to obtain what was once nearly automatic renewal. In the USCIS’ already notoriously slow workflow process, even more hobbling delays seem inevitable.
The traditionally overworked USCIS adjudicators are facing a mountain of additional work. As an employer of H-1B workers, you’re going to need to jump on the extension process as early as possible every time.
The USCIS’ recent update for nonimmigrant worker extension petitions is so circuitous that it’s worth reviewing in its entirety. Though the extension policy used to be nothing more than a formality, this policy update has dramatically changed all of that. Every petition for extension will be processed like an entirely new petition that can even necessitate the submission of further documentation – even though the USCIS has regulations in place that refute this necessity.
Employers of H-1B workers could be in for a bumpy ride.
Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us at firstname.lastname@example.org.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.