On Nov 03 2017

CLIENT ALERT: What’s Old is New Again

By Lisa T. Felix, Esq. and Steven R. Miller

For the past 13 years, the United States Citizenship and Immigration Services (USCIS) has largely treated applications for extensions of nonimmigrant status with deference to their original decision, so long as the details remained the same from petition to petition.

This approach was established in an April 2004 Policy Memo directing USCIS adjudicators to uphold their prior determinations except in circumstances of error, a substantial change of facts, or new information adversely impacting previous eligibility. The 2004 policy supported codified immigration regulations that expressly permit an application for extension to be filed without the same extensive supporting documentation required for an initial petition.

A 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 extensions remain the same. The Policy Memo acknowledges the immigration regulations (which have higher authority and remain unchanged) permitting abridged supporting documentation in extension petitions. However, the Policy Memo states that USCIS officers should “not feel constrained” in requesting additional evidence and documentation for extensions.

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

Not having been able to pass legislation to tighten employment-based immigration laws, the President issued the April 2017 Buy American and Hire American Executive Order aimed at forcing through such restrictions anyway. Buy American and Hire American calls for “rigorous” enforcement and reforms of the laws governing the entry into the U.S. of workers from abroad. The Executive Order specifically targets H-1B visas, requiring 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, the USCIS immediately began implementing markedly heightened scrutiny and assumed a generally restrictive stance toward employment-based petitions such as H-1Bs, O-1s, L-1s, and permanent residence applications for highly skilled workers. A recent Reuters article, “Trump administration red tape tangles up visas for skilled foreigners, data shows” (September 20, 2017) reported that from January 1, 2017, to August 31, 2017, USCIS requests for additional evidence (RFEs) for H-1B petitions were up 45% over the same period last year. These RFEs struck both initial (first time) H-1B petitions as well as long standing extension petitions. The Reuters article cites data provided by the American Immigration Lawyers Association which showed that software developers and computer systems analysts were challenged more often than other jobs.
This summer’s dramatic uptick in requests for additional evidence and this week’s extension Policy Memo are viewed by supporters as necessary to protect the American workforce from foreign employees. However, RFEs can pose a significant hardship to employers and the employees they wish to hire by significantly delaying the issuance of visas and work authorization, and requiring substantial effort, time, and money on the part of the employers hoping to hire specific, highly skilled workers. Employers view these restrictions as a completely misdirected response to the real problems burdening the legal, employment-based immigration system. The new Policy Memo and protocols under Buy American and Hire American are new links in the chain constraining American business from competing on a global level the need for the highly skilled, professional foreign employees needed for key specialty positions.
Clients with questions about the October 23, 2017 Policy Memo and its potential effect on an initial or extension employment-based immigration petitions should contact their Klasko Immigration Law Partners attorney.