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Employers may need to file visa extension requests for their temporary foreign guest workers earlier—and possibly prepare for litigation.
The U.S. Citizenship and Immigration Services (USCIS) is instructing its officers to apply the same level of scrutiny to extension requests for guest worker visas as they would for initial petitions, even when nothing has changed with the worker's situation and there has been no evidence of error or fraud.
The updated policy guidance rescinds previous policy which allowed officers processing visa extensions to defer to prior approvals when the petition involved the same parties and underlying facts as the initial petition.
USCIS Director L. Francis Cissna described the policy change as enhancing "the integrity of the immigration system," and "helping advance policies that protect the interests of U.S. workers."
[SHRM members-only toolkit: Obtaining U.S. Employment Visas]
Effective immediately, USCIS officers are expected to thoroughly review each extension request to determine eligibility. "While adjudicators may ultimately reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point as the burden of proof to establish eligibility for an immigration benefit always lies with the petitioner," Cissna said.
"The previous policy memos addressed consistency and providing more-reliable adjudications throughout USCIS," said attorney Allison Kranz, an immigration solutions partner with Envoy Global, an immigration services company based in Chicago. "The memos instructed officers to rely on the previous decision of the first officer unless there was an unusual circumstance, such as in cases of material error, a substantial change in circumstances, new information that changes the case or, obviously, fraud or misrepresentation."
She added that she doesn't think the policy update will lead to significant changes in the process for employers. "Some employers may experience a petition being approved, and the subsequent extension denied, but that has already been happening," she said. "Immigration attorneys have been seeing that for years."
Kranz said that one foreseeable industry change will be employers and the law firms that file their petitions for them treating extension applications as seriously as initial petitions and including the same documentation as in initial petitions. "If employers know they have difficult cases, or cases that have been challenged in the past, or have received inconsistent adjudications, those will be the ones that require additional attention."
Greg Siskind, founding partner of Memphis-based law firm Siskind Susser said he anticipates that extension applications will require longer for the law firm to prepare and the likelihood of receiving requests for evidence will increase substantially. "We are advising clients to file at the earliest possible date for petition extensions, generally 180 days before the current petition expires. Many clients may want to consider accelerating permanent residency processing to avoid the necessity of having to file an extension petition at all."
Tahmina Watson, an immigration attorney and founder of Watson Immigration Law in Seattle, said the new policy could be far-reaching and will particularly impact H-1B visa holders, especially those waiting for green cards. "Coupled with the new rule that all employment-based green card applicants must be interviewed, the resulting effect will be even longer delays as well as risks to even being in the waiting game," she said. "Every single H-1B visa holder stuck in the backlog, particularly from India, is going to be affected by this policy."
Siskind said that employers should be prepared, in some cases, to have to litigate extension petitions. "We believe many courts will be sympathetic to the argument that reversing a prior determination of eligibility by USCIS absent changed facts or fraud is arbitrary and contrary to the law. Because litigating can take some time, filing for an extension and using premium processing will more likely provide enough time to get a court order requiring USCIS to defer to a prior finding."
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