The United States Citizenship and Immigration Services(USCIS) recently updated its policy guidelines as they relate to extensionpetitions for nonimmigrant workers. Previously, these extensions for H-1Bvisas were fairly routine and didn’t stir up much controversy or complication.This policy update, announced Oct. 23, could seriously change all of that, andemployers of nonimmigrant workers should be concerned – wait times could govery long.
The policy update calls for USCIS officers to apply the same level of scrutiny to bothinitial petitions and extension requests for nearly every nonimmigrant visacategory, including the popular H-1B option. Newly confirmed USCISDirector Lee Francis Cissna states in the press release:
“USCIS officers are at the front lines of theadministration’s efforts to enhance the integrity of the immigration system. Thisupdated guidance provides clear direction to help advance policies that protectthe interests of U.S. workers.”
Prior to the update, USCIS officers were instructed to deferto the determinations of already approved petitions if all the key elementsremained unchanged and if there was no evidence of material error or fraudrelated to that approval. The policy update rescinds this instruction anddetermines that the burden of proof related to visa extensions remains with thepetitioner/employer – irrespective of original approval.
In other words, each visa renewal will essentially gothrough the same process that the original petition did, rather than therubber-stamp process formerly applied. Although the adjudicators may ultimatelyreach the same original conclusion regarding the viability of extension, the USCIS advisesthey are not compelled to do so and that approval is not the default startingposition on such decisions.
This is going to be harsh on employers seekingH-1Bextensions.
Get Ready to Wait
In the policymemorandum itself, the USCIS acknowledges that the requirements forextensions don’t necessitate further document submissions when the extensionscontain no variance from the original petitions. This acknowledgment aside,however, the policy update goes on to relay that, while this regulation doesgovern submission requirements for filing petition extensions, it in no waylimits (and, indeed, reiterates) theUSCIS' authority to request further documentary evidence.
If your company relies upon H-1B workers, you’re probably wonderingwhat all of this means for you. It seems certain that this policy updateportends much longer wait times and enhanced efforts to obtain what was oncenearly automatic renewal. In the USCIS’ already notoriously slow workflowprocess, even more hobbling delays seem inevitable.
The traditionally overworked USCIS adjudicators are facing amountain of additional work. As an employer of H-1B workers, you’re going toneed to jump on the extension process asearly as possible every time.
The USCIS’ recent update for nonimmigrant worker extensionpetitions is so circuitous that it’s worth reviewing in its entirety. Thoughthe extension policy used to be nothing more than a formality, this policyupdate has dramatically changed all of that. Every petition for extension willbe processed like an entirely new petition that can even necessitate thesubmission of further documentation – even though the USCIS has regulations inplace 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 yourbusiness or employees, please do not hesitate to reach out to us at firstname.lastname@example.org.