USCIS issued a Policy Memorandum (PM) on October 23, 2017 titled – “Rescission of Guidance Regarding Deference to Prior determinations of Eligibility in the Adjudications of Petitions for Extension of Non-Immigrant Status.” This new PM rescinds the earlier PM of April 23, 2004 (The significance of Prior CIS Approval of a Non-Immigrant Petition in the context of the subsequent determination regarding eligibility for extension of petition Validity) & Section VII of the August 17, 2015 PM (L-1B Adjudications Policy).
Under old policy, immigration officers were authorized to grant deference to the initial H-1B/L-1 petitions during review of the extension request, unless there was:
• Material error in previous approval
• Substantial change in circumstances
• New material information that adversely impacted eligibility
Under the new policy, USCIS officers are instructed not to give any deference to prior approvals in reviewing extension petitions. USCIS reminds its officers that the burden of proof is with the Petitioner and USCIS officers should review each case on its merits and request additional evidence if Petitioner has not submitted sufficient evidence to establish eligibility.
Immediate Impact of New Policy on H-1B and L-1 Extensions
USCIS is now asking its adjudicators to apply the same level of scrutiny to both initial & extension petitions, even though the underlying facts may be unchanged from previously approved petition. Further, even when regulations do not require that all supporting documents be submitted (in the initial evidence), when an employer files an extension petition (without any change on behalf of a petitioner) – USCIS is asking its officers to issue RFEs.
Thus, the immediate impact of this new PM will be as follows:
• Petitioners will have to submit more robust initial evidence for the benefit sought whether or not required by regulations
• Requests for Evidence issuance will become even more common place no matter how thorough the initial filing
• We anticipate a significant increase in Denial Rates for Extension petitions
• We also anticipate an increase in issuance of Notices of Intent to Revoke (NOIR) on prior approved petitions on the grounds that the earlier approval was in error.
The Intended Target is IT Consulting and H-1B Workers from India
The bulk of the impact of these policy changes will be borne by Indian H-1B workers and IT Consulting companies. Trump Administration is keenly aware of the changes they are making and who it is targeting. Players within the Trump Administration (Jeff Sessions and Steve Miller) are not fans of H-1B program. GLF believes that the Trump Administration will make the H-1B program unworkable through a strategy of “Death by a Thousand Cuts.” GLF will continue to watch these changes and its intended consequences on the ground and keep you updated through our periodic Newsletters.
Write Letters to Members of Congress – Get Involved!
AILA has worked within the context of the Indian Subcontinent Interest Group to prepare templates of letters for Employers to send to their Members of Congress. We encourage you the Employer to get active and get involved and forward these letters to your MOC – GLF can share the template if you are interested. Please contact manjunath@gokarelaw.com for template.
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