In its on-going attempt to limit legal, employment-based immigration pursuant to the "Buy American, Hire American" executive order, the USCIS has announced that it will no longer give deference to prior approvals. So, a petitioner filing an extension for one of its employees where there has been no change in the position title, description or work location, can no longer assume that the USCIS will approve the extension.
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.
While you don't hear about it in the media, legal employment-based immigration is under assault. There have been no changes in the law or regulations and yet the USCIS continues to introduce new ways to try to limit employers' ability to hire the high-skilled talent that they need. Your Congressional representatives need to hear from you that the H-1B, and other employment-based programs, are vital to your business and to the U.S. economy. I'm attaching a letter
that you can adapt for this purpose.
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.
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.