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.
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.