On Nov 15 2017 by William A. Stock

Long-Time Visa Holders Fear New Immigration Guidance on Questioning Prior Approvals

President Trump’s appointee to lead United States Citizenship and Immigration Services (USCIS) was confirmed by the Senate and was sworn in as Director on October 8, 2017.  Within his first two weeks of office, the agency issued its first official policy memo under his leadership. 

Such policy memos provide guidance to the men and women tasked with adjudicating applications for immigration benefits, such as petitions for temporary or permanent visas and applications for extension, change or adjustment of legal status in the United States.  The policy memo strongly signaled to immigration officers that they should feel free to question previously approved temporary visa petitions and applications, even where the underlying facts and circumstances had not changed.

The new policy memo expressly reverses guidance provided by a George W. Bush-era policy memo.  The April 2004 Policy Memo directed USCIS adjudicators to uphold the prior determinations of other USCIS adjudicators except in circumstances of error, a substantial change of facts, or new information adversely impacting previous eligibility. The 2004 policy supported the principle, codified in immigration regulations, that petitions or applications for extension of the same temporary legal status can be filed without extensive supporting documentation, assuming the facts and circumstances have not changed since the initial petition.

The new Policy Memo issued by the USCIS on October 23 explicitly rescinds this longstanding approach. Titled “Rescission of Guidance Regarding Deference to Prior Determinations in the Adjudication of Petitions for Extension of Nonimmigrant Status,” this new and binding Policy Memo directs USCIS adjudicators to apply the same level of scrutiny to extensions as they do to new petitions, even when the key elements of the petition remains the same as prior petitions for the same employee. The Policy Memo acknowledges the immigration regulations (which have higher authority and remain unchanged) permit the filing of extension petitions with abridged supporting documentation. However, the Policy Memo states that USCIS officers should “not feel constrained” by that regulation in requesting additional evidence and documentation for extensions.

The new Policy Memo continues a clear trend instigated several months ago, in apparent conformity with the Trump Administration’s stance on restricting legal immigration.

While favoring legislation to restrict immigration to the United States, Congress has not taken serious steps to consider changing United States immigration laws. The President, however, has asserted his authority to restrict immigration by Executive Order.  In April 2017, the President signed the “Buy American and Hire American” Executive Order aimed at restricting legal immigration to the greatest extent possible, consistent with current statutory authority. The Buy American and Hire American Executive Order calls for “rigorous” enforcement of requirements for legal immigration and calls for reforms of the laws governing the entry into the U.S. of workers from abroad. The Executive Order specifically targets H-1B visas, the most commonly used professional working visa.  The Order required the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to suggest reforms to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

In response to the Executive Order, USCIS immediately began implementing markedly heightened scrutiny of employment-based filings, increasing Requests for Further Evidence (RFEs) by forty-five percent in the past six months. Data from by the American Immigration Lawyers Association shows that software developers and computer systems analysts have been challenged more often than other jobs. These RFEs struck both initial (first time) H-1B petitions as well as long-standing extension petitions. The RFEs marked a more restrictive stance toward employment-based petitions such as H-1Bs, O-1s, L-1s, and permanent residence applications for highly skilled workers.
The release of the new Policy Memo should be understood the context of the Buy American and Hire American Executive Order and this summer’s increase in the amount of evidence being required for approval of temporary visa petitions. The Policy Memo is a de facto increase in the standard of proof for the extension of petitions for temporary work visas, requiring petitioners to re-prove their cases over and over to different officers.  These officers are now encouraged by Headquarters to make additional inquiries, even where the visa holder has been approved many times over the prior years. 

The Policy Memo’s instruction that officers should not consider themselves bound by prior adjudications has a potential to work even greater mischief, however.  When agencies make policy changes, the regulated public generally expects to receive notice of those changes, and to have them applied prospectively.  In April of  2015, for example, USCIS issued a precedent decision resolving a long-ambiguous regulatory issue regarding whether nonimmigrant work status needed to be amended if only change in the sponsored employee’s job was that it would be performed in a different geographic location.  In doing so, USCIS expressly made its decision proactive in effect, and gave employers a transition period to come into compliance.  By removing deference to prior adjudications, USCIS officers will now feel more free to apply new, restrictive adjudication standards retroactively, upsetting expectations of employers and employees who have relied on USCIS’s record of consistently approving their petitions.

It remains to be seen whether this Policy Memo is only the first of many more restrictive changes to be expected from our new USCIS Director.  By issuing this new Policy Memo as his first official act, however, the Director is clearly signaling that employers and employees using the employment-based visa categories should take nothing for granted – not even the continued approval of petitions that have been extended for years without issue.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the November 15, 2017 edition of the The Legal Intelligencer© 2017 ALM Media Properties, LLC. All rights reserved. 
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