The U.S. government recently issued a new policy memorandum with guidance for U.S. Citizenship and Immigration Services (USCIS) in deciding petitions for extension of nonimmigrant status, such as H-1B, L-1, O-1, and TN. Previous guidance directed adjudicators to defer to prior approved petitions with the same underlying facts to establish eligibility while adjudicating extension applications. The new policy has shifted so that officers are no longer required to defer to prior determinations. Instead, while adjudicating extension applications, they must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought.
Where the default position was once for adjudicators to rely on the initial, approved petition as a starting point in determining eligibility, USCIS no longer follows this policy. This shift in policy has occurred in an effort to remain consistent with the agency’s current priorities to supposedly protect the interests of U.S. workers. This is a reoccurring theme and policy shift that we have seen as a part of the Trump administration.
Therefore, it is as important as ever for employers to ensure that they not only file nonimmigrant petitions, such as H-1B’s, correctly the first time, but that the extension application is equally as comprehensive and consistent with the original filing. In order to avoid Requests for Evidence, it is better to resubmit all supporting evidence on behalf of the petitioner employer and the employee, as USCIS adjudicators will no longer defer to an employee’s previous approval. Dayzad Law will continue to submit such thorough and complete applications on behalf of our clients, and will continue to update our clients regarding any future changes in the law or in immigration policy.