In the name of ‘Buy American, Hire American”- simple visa extensions will no longer be simple

Today, in unexpected news (much like other news this administration releases without notice), USCIS released an announcement and a policy memo that previously approved non-immigrant visa applications will no longer receive ‘deference’ and will receive extra scrutiny- see below copy of notice. The new policy will supersede well established old policy that an approved application should be treated as approvable.

The effect of the new policy is far reaching and will particularly impact H1b visa holders, especially those who are waiting for green cards. Coupled with the new rule recently implemented that all employment-based green card applicants must be interviewed- the resulting effect will be even longer delays as well as risks to even being in the waiting game.

I was reviewing some old matters and came across an article in which I was quoted in January 2017 soon after the administration came into office. The Puget Sound Business Journal’s Ashley Stewart wrote a story about risks to high-tech workers under the new administration. Here is a link.   The article in part stated,

“President-elect Donald Trump and his attorney general pick, U.S. Sen. Jeff Sessions – who in 2015 criticized Microsoft for laying off domestic workers while bringing in foreign recruits – have indicated they may overhaul or scrap the high tech H-1B visa program. “Changes are coming,” Seattle immigration attorney Tahmina Watson said. “It’s just about how bad it’s going to be.””

I said ‘changes are coming’ “It’s just about how bad it’s going to be’.  I am reminded of this article because I really didn’t appreciate the extent to which adverse policy changes would be implemented.  I certainly didn’t anticipate the speed in which implementation is occurring.  This administration makes an announcement, and then implements. There is no rule making due process- thus undermining due process and the rule of law. In the name of ‘Buy American, Hire American”, the administration is trying to orchestrate paths to remove hard working, talented and job creating immigrants in stealthy ways.

To my readers and listeners, get in touch with me if you have questions or concerns. Every single H1b visa holder stuck in the backlog, particularly from India, is going to be affected by this policy. To my readers and listeners, get in touch with me if you have questions or concerns.

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Copy of USCIS message:

WASHINGTON — Under updated policy guidance, U.S. Citizenship and Immigration Services (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 filed using Form I-129, Petition for a Nonimmigrant Worker

“USCIS officers are at the front lines of the administration’s efforts to enhance the integrity of the immigration system,” said USCIS Director L. Francis Cissna. “This updated guidance provides clear direction to help advance policies that protect the interests of U.S. workers.”   

As before, adjudicators must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The updated guidance instructs officers to 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. While adjudicators may ultimately reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point as the burden of proof to establish eligibility for an immigration benefit always lies with the petitioner. 

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. 

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 adjudicator’s determination is based on the merits of each case, and officers may request additional evidence if the petitioner has not submitted sufficient evidence to establish eligibility. 

Interim and final policy memos are official USCIS policy documents and are effective the date the memos are issued. 

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