In a policy memorandum dated October 23, 2017, the USCIS announced that it has instructed its adjudicating officers to apply the same level of scrutiny to both initial petitions and extension petitions for H-1B, L-1, TN, and other nonimmigrant categories. This is a significant change from the USCIS’ previous policy, which did not allow officers to readjudicate extension petitions that had already been approved in initial petitions. Adjudicating officers may now readjuciate the beneficiary’s eligibility for a nonimmigrant classification at the time the extension is requested, even if this there has been no change in facts regarding the foreign worker’s job position, job location, etc.
Under the previous policy, USCIS officers were required to give deference to past approvals unless:
- There was a substantial change in circumstances that affected the beneficiary’s eligibility for the nonimmigrant classification,
- The agency made a material error in the previous approval, or
- The new information adversely affected a beneficiary’s eligibility for the nonimmigrant status.
In the new policy, previously approved petitions no longer receive deference by adjudicating officers. As a result, employers should expect a significant increase in Requests for Evidence. With each officer expected to weigh the facts of each case, additional Requests for Evidence will likely be issued requesting more information about job duties, job classification, job location within the company’s organizational structure, job requirements, and the employer’s ability to pay the prevailing wage. Companies should expect increased scrutiny regarding company financials, specifically regarding their tax records and annual reports. For H-1B petitions in particular, Requests for Evidence may also include requesting that the employer provide a detailed list of other positions that it currently sponsors in H-1B status. This Request will be for the USCIS to decide whether the position under scrutiny truly qualifies as a specialty occupation and/or whether the company can pay the prevailing wage of all of the sponsored positions at once.
In addition, an increase in Requests for Evidence often means longer processing times. Presently, premium processing is available for H-1B, L-1, and TN petitions. This may be suspended again for certain categories in the coming months.
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Victoria Gentry is an associate attorney with The Immigration Group, P.C. practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.