USCIS New Policy H1B and L1 Extensions 2017

News: USCIS Updated Policy for H1B, L1 Extensions – New Rules ? Impact ?

In Immigration| Visas by Kumar11 Comments

USCIS has released a press note couple of days ago indicating the changes to its policy guidance on how to review a H1B and L1 petition extensions and many other visa petitions that are filed using I-129 form when they are being processed by their officers. The Below is the summary on what has changed and its impact.

Background : It is good to know the background before we jump in to the current context.

  • In April 2004, there was a policy memorandum called “The Significance of a Prior CIS Approval of a Non-immigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity”, that was published in by USCIS that gave guidance to its officers on how to assess an extension petition for H1Bs and L1s.
  • In August 2015, there was another policy memorandum that was published called “L-1B Adjudications Policy”, which gave similar guidance for L1 petitions extensions.

Why New Updated Policy ? Now, the reason for the new updated policy memorandum for H1B, L1 extensions is published is to make sure the petitions are assessed as per the current priorities of the US Govt. as per the Buy American and Hire American Executive Order that President Trump signed earlier this year.  This new memorandum will revoke/cancel the above two policies from 2004 and 2015 and supersede in that place. I will try to take out all the complex legal jargon and put it in simple language.

Summary : Updated Policy Guidance for H1B, L1 Extensions

  • Previous H1B, L1 extension Review Policy : As per the previous memos, if an extension petition meets certain criteria like same employer, employee and same underlying facts, then USCIS officer had to give deference ( basically meaning importance/ respect) to that previous decision, if there was no fraud or material error involved.  Also, the old policy clearly instructed that the officer had to provide clear evidence, if they issue an RFE or decision regarding the new changes, material errors or new information that they found.  So, basically the burden was on the USCIS officer adjudicating the petition and previous officers’ decision.  Even though the reviewing officer had rights and full power to take any action and review the extension in whole, it was kind of limiting them and burden was on them in legal sense.
  • New, Updated Policy for H1B, L1 Extension : Now, with the new policy change, USCIS indicates that irrespective of the previous approval of the petition, there is no need for the USCIS officer reviewing the petition to give that importance of previous approval to their current decision. Basically, USCIS officer will review the petition as if it was a new petition and make sure everything is right and it is up to the petitioner/ employer to make sure they provide all documentation to ensure that the H1B or L1 extension meets the standard criteria for H1B/L1 visa category. The burden is on the employer/ petitioner and not on the USCIS officer anymore.   All the official policy documents are under references section, you can read them.

What is the impact of the New Changes to H1B and L1 Extension Adjudication rules ?

I believe, for all the genuine employers/ petitioners, it should not be any problem, the only burden for them is to submit additional documentation again as they would submit for the first time. Many employers do this anyways, so it is not much difference. But, for some of the IT body shop companies that have employees with approvals in the past with old rules and have been continuing extensions, they may need to submit additional documentation and there will be scrutiny as they would have been approved long time ago under old regulations, now the regulations have changed like Level 1 prevailing wage rules, etc. So, it is kind of retrospective as previous decision by USCIS is not of importance anymore. One thing you will see more extension is more RFEs.

What are your thoughts ?

References :

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Comments ( 11 )

  1. Oldtime

    Hi visa and petition is valid till dec17. If I travel now, and file extension will it be approved and will there be any issues at the POE. What questions can I expect at the PoE for this scenario. Pls help.

  2. Testy

    Usa should no longer be the place for foreign students or green card aspirants. The tide has turned, expect decades of agony without any real chance of getting green card if you come to USA. Don’t waste your money and your life.

  3. sam

    Hi All,

    I have switched the company and my visa validity is there till June 2019.

    Will it be a problem if i go India now for stamping now.

  4. pks

    Hi Friends,

    My visa expired on last Sep 30th. I have filed extension on my case and received the receipt notice. shall I send my dependents to stamping with my receipt notice or I need to wait for extension approval. could you please anyone help me

  5. sriram

    Does this mean we need to go through lottery again after 3 years ? firstpost written an article that extension every time a person will try for an extension that application will be considered only if its picked up in lottery. This doesnt make sense if my visa is getting expired in december

    1. administrator
      Kumar

      sriram,
      That’s not true, you need not go through lottery again. It is just that the scrutiny will be done by the officer just like a fresh application and employer need to provide all relevant documents.

  6. Bobby

    I think otherwise. I think there will be major impact. Lot of rejections.
    Here is why I think so.. even if you are part of genuine company and work for genuine client, the adjudicator has to see if you qualify as a highly qualified applicant for h1b? Remember the h1b is only for highly qualified workers. In 2001 an engineering degree in comp sc from India was a highly qualified application but in 2017, it is not. We have tons of comp sc graduates from local community colleges here in US now. Also experience wise, if you just a developer / programer… well we have tons of them as well. If you are lead or manager… not really a tech qualification….. so …. i pretty on those who have approved I 140 and they keep renewinh h1 for next few years.. most of these guys have bought houses etc.. lol..

    1. administrator
      Kumar

      Bobby,
      Interesting perspective though…we will have to see, everything depends on the job role that the employer originally posted and if they plan to make changes now during extension, if that was not sufficient now…

  7. Ashok

    initially there were only shady consulting companies which is fine. Now it became double shady, i think triple shady too. Time to put an end to these second and third level shady consulting companies.

  8. Anil

    I don’t think of much impact since the client/vendor letter(s), pay stubs etc.. are anyway required even for extension.
    There would be more scrutiny which could result in more RFEs.

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