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 ?
- USCIS.gov – Oct 2017 Updated Policy for Extensions
- USCIS.gov – April 2004 – Significance of Previous Approval on Extensions
- USCIS.gov – August 2015 – L1B Adjudications Policy