On Monday, updates to USCIS approval policy were announced. USCIS released a memo requiring a closer review on visa extensions for nonimmigrant workers. This memo rescinds two previous memos, one from 2004 and one from 2015, that called for a “policy of deference” when it came to previously-approved petitions.
Per these historical memos, if a new extension petition was filed for the same foreign national, by the same organization and with no major substantive changes as a previously approved petition, then adjudicators were recommended to defer to the previous determination and approve the current petition as long as no fraud or willful misrepresentation was identified.
As of Monday, however, adjudicators must conduct an independent review of each petition rather than deferring to the prior visa determination. This change could impact new petitions as well as H-1B extensions and other critical work visas.
The purpose of the updates to USCIS approval policy is to put the “burden of proof” back on the petitioner rather than on the agency. Every petition will be examined and processed as if it’s completely new, leaving it up to the petitioning organization and foreign national to provide sufficient evidence to support the case as required by the law and regulations.
It’s a change that’s aligned with the current administration’s Buy American, Hire American initiatives and is intended to “protect the interest of U.S. workers,” according to USCIS director L. Francis Cissna.
Experts believe this policy change could lead to an increase in RFEs and denials for visa petitions in the future. Employers should be prepared to submit a strong application for all visas and treat renewals like a new application. They cannot rely on a previous application’s approval to impact a renewal and thus most likely this will create more work and preparation on the part of employers, employees and immigration attorneys.