The U.S. Citizenship and Immigration Services (USCIS) has issued new guidance on non-immigrant visa extension petitions. Up to now extension petitions for already approved I-129 petitions with the same employer, without any change in job duties, were routinely approved, unless there was some glaring mistake in the original approval. As the new USCIS memo states:
"The previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination. The updated policy guidance rescinds the previous policy."
USCIS is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for certain nonimmigrant visa categories. The guidance applies to nearly all nonimmigrant classifications. Officers must apply the same level of scrutiny when reviewing nonimmigrant visa extension requests, even where the petitioner, beneficiary and underlying facts are unchanged from a previously approved petition.
Under the law, the burden of proof in establishing eligibility for the visa petition extension is on the petitioner, regardless of whether USCIS previously approved a petition.
The press release refers to the administration's Buy American, Hire American policy, so we can assume that the change in policy is another way that the administration is allowing USCIS officers to prevent companies hiring foreign workers.
U.S. Citizenship and Immigration Services (USCIS) resumed premium processing for H-1B extension petitions. This means that Premium Processing is again available for all H-1B petitions.
Premium Processing was suspended in April 2017, shortly after the cut-off date for H-1B cap filings. Premium Processing guarantees that the government will take action on a case with 15 days of filing, for an extra $1225 filing fee. The action is not necessarily an approval; it could be a Request for Additional Evidence (RFE). An RFE stops the 15-day PP clock until CIS receives a response to the Request.
For more information, see previous blog posts.
USCIS Press Release
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.