Since 2004, USCIS policy required adjudicators to defer to prior determinations when reviewing nonimmigrant H or L Visa Petition extensions. Where the parties involved and the basic facts remained the same, there was a built-in bias toward approval. The October 23, 2017 Memorandum rescinds that policy.
Now adjudicators must “thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought.” This will require Petitioners to more thoroughly document petition extensions, even though the regulations at Title 8 C.F.R. specifically state that in some cases, initial evidence need not be submitted with these extension requests.
USCIS cites the undue burden placed on the Service by the prior policy. The Memorandum notes that adjudicators would have to request a separate file-possibly at another location-in order to determine if the original petition was properly approved, there has been a material change in circumstances, or there is new material information which adversely affects eligibility.
Moving forward, extra care must be taken when preparing an H-1 or L-1 petition extension in order to avoid the dreaded Request for Evidence.
This is just the latest step taken by the administration to negatively impact the lawful employment of foreign nationals-all in the name of protecting U.S. workers.
Please contact our office if you have any questions.