In a move that is says will “protect the interests of U.S. workers," the United States Citizenship and Immigration Services (USCIS) announced that it will hold renewal visa H-1B applicants, as well as L-1, TN and 0-1 applicants, to the same standards as first-time visa applicants. This move reverses past policy, implemented in 2004, that allowed visa adjudicators to defer to prior eligibility determinations for visa holders, as long as the petition involved the “same parties and underlying facts as the initial petition.”
Why the changes?
According to the USCIS, the past policy may, “in some cases, have had the effect of limiting the ability of adjudicators to conduct a thorough review of the facts and assessment of eligibility in each case,” and “likely had the unintended consequence of officers not discovering material errors in prior adjudications.” Additionally, USCIS has made clear that it feels the burden of proof should fall on the applicant, not the adjudicator, citing this as a flaw of the previous policy.
According to a CNN article, this change comes amid President Trump’s appointment of a new USCIS director and implementation of his “Buy American, Hire American” Executive Order, which directs federal agencies to rigorously enforce and administer immigration laws and “to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.”
What does this mean for those looking to renew H-1B and other skilled worker visas? The burden of proof will now be on the applicant, not USCIS, to prove that facts contained in his/her previous application have remained the same. In addition, USCIS, in its policy memorandum on the topic, specifically reiterated its authority to request additional evidence from petitioners. This means that applicants should not assume that the USCIS, U.S. Consulates or U.S. Embassies will understand or know what information or documents were included in their first filing, and should not assume that they will be given the benefit of the doubt in a renewal filing.
What you can do:
To mitigate these changes and help minimize processing delays, make sure to:
Include updated copies of all requested documents, including all educational and equivalency evaluations previously filed.
Include a complete copy of any previous filing(s) within the second petition.
Use common sense: Make sure your application is as clear, concise and error-free as possible. Even if underlying facts have not changed, expect that your application will come under increased scrutiny and anticipate delays.