USCIS Reverses Long-Standing Policy on H-1B Extensions

On October 23, 2017, USCIS rescinded its long-standing policy of deference in the adjudication of H-1B extensions with the same employer. USCIS officers will now “apply the same level of scrutiny to both initial petitions and extension requests for certain nonimmigrant visa categories” pursuant to the policy memorandum, “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status.” USCIS Director L. Francis Cissna stated that, “This updated guidance provides clear direction to help advance policies that protect the interests of U.S. workers.”

Previously, USCIS in the interest of time and resources afforded employers deference for previously approved petitions where material factors were unchanged and there was no evidence of error of fraud related to the prior determination. This allowed for foreign workers working for the same employer, typically for over 3 years, to have their work continue with limited disruptions.

The updated policy memorandum effectively rescinds this policy.

While this policy has changed the nature of extension filings and their adjudications, it will not change how ImmiCore Law has been handling non-immigrant extension filings. We at ImmiCore Law have advised our clients that they must ensure the Beneficiary will meet the non-immigrant requirements at each filing, regardless of the previous policy. We will continue to provide a nuanced case-by-case analysis of the Beneficiary’s educational qualifications, maintenance of status, and qualifications for the proffered role for the extension petition to ensure Beneficiaries continue to meet the eligibility requirements for the status requested.