For over a decade, filing an extension of nonimmigrant status in visa categories such as the H-1B was a fairly routine process for cases involving the same employer and same underlying facts. This changed yesterday. As part of the Trump Administration’s Buy American, Hire American: Putting American Workers First initiative, USCIS rescinded a long-standing policy from 2004, The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity; and Part VII (Readjudication of L-1B Status) of L-1B Adjudications Policy from 2015, and issued new policy guidance entitled Recission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status. This new guidance instructs USCIS officers to no longer give deference to prior determinations of eligibility for extensions of nonimmigrant status that include the same parties and underlying facts and shifts the burden of proof back to the Petitioner/Employer. This new guidance will impact extensions of nonimmigrant status that use the I-129 Form and will likely result in the issuance of more Request for Evidence (RFE) notifications. Employers who were already experiencing heightened scrutiny and hurdles in the H-1B program over recent months, including the systematic issuance of Wage Level 1 RFEs, will now see an even higher percentage of RFE notifications. We will continue to monitor and report on review trends that result from this guidance.
For more information on H-1B visas, please click here.
*Not admitted to the practice of law.