USCIS Increases Scrutiny on H-1B and Other Visa Renewals

From: USADNEWS Volume XI, Issue 9

On October 23, 2017, U.S. Citizenship and Immigration Services (USCIS) announced it is advising its officers to “apply the same level of scrutiny to both initial petitions and extension requests” for H-1B and L-1 visas, in addition to other visa petitions that are filed using Form I-129. This additional level of scrutiny will be applied even when reviewing extension requests where the underlying facts are unchanged from the initial application. Previous USCIS policy was to give deference to petitions that had previously been approved, “as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination.” As part of the Trump administration’s “Buy American, Hire American” initiatives, the new policy updates eliminate this deference to previously approved petitions.

Betsy Lawrence, the director of government relations for the American Immigration Lawyers Association (AILA), anticipates that the additional scrutiny on extension requests will cause delays in processing. Lawrence told CNN Tech that the previous guidance had been intended to make the review process more efficient, and that USCIS officials still had the authority to question prior decisions when reviewing extension requests.

H-1B visas are initially issued for a three-year period and can be renewed for another three years. The policy updates place the burden of proof entirely on the petitioner for providing evidence to justify their extension of stay. This new guidance does not mean that applicants for H-1B visa extensions will be placed back into the visa lottery. However some immigration attorneys are wary that the new guidance indicates a determination to look for reasons to deny visa petitions. CNN Money quoted attorney Chris Wright of the Wright Law Firm, who expressed concern that “the prevailing attitude seems to be, ‘How might we be able to deny this petition?'”