The Trump Administration continues to make changes adversely affecting processing times and the nimbleness of the United States’ response to businesses’ needs for employees.
Extensions of nonimmigrant (temporary) work visas will be subject to re-adjudication.
On October 23, 2017, USCIS reversed a policy in place since 2004 that allowed its officials to defer to prior eligibility decisions when adjudicating an employment-based nonimmigrant visa extension request filed by the same employer for the same employee where there were no material changes in the facts of the case. The new policy took effect immediately.
This change will affect all employers filing to extend their H-1B, L-1, or O-1 visa professional and managerial employees’ period of authorized stay. It will mean that USCIS is essentially conducting new eligibility determinations for visa extension requests, even when the employer, the employee, the type and location of the job, and all other conditions are unchanged since the initial visa petition filed by the employer was scrutinized and approved by USCS.
At best, as a result of this about-face, employers are likely to experience extended delays in obtaining decisions, as well as increased incidence of requests by USCIS for additional evidence regarding visa extension petitions. At worst, the memorandum announcing the policy change will be seen as an invitation by USCIS officials to exercise their discretion to deny extension requests. This new policy will create uncertainty for both the employer and the employee about whether a valued staff person will be able to continue his/her work, in contrast to the prior policy that virtually assured all parties that the employment relationship could continue smoothly if no material conditions had changed in the interval between the initial petition and the extension request.