CHANGES in adjudications of H-1B renewal petitions. On October 23, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that under updated policy guidance USCIS is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for certain nonimmigrant visa categories. The updated policy guidance applies to nearly all nonimmigrant classifications filed using Form I-129, Petition for a Nonimmigrant Worker.
Said USCIS Director L. Francis Cissna: “USCIS officers are at the front lines of the administration’s efforts to enhance the integrity of the immigration system.” Director Cissna further stated that “this updated guidance provides clear direction to help advance policies that protect the interests of U.S. workers.”
USCIS Adjudicators must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought, as they have always done in the past. The updated guidance instructs officers to apply the same level of scrutiny when reviewing nonimmigrant visa extension requests even where the petitioner, beneficiary and underlying facts are unchanged from a previously approved petition. Meaning, USCIS Adjudicators may no longer rely on a previously approved petition as basis for approval of a renewal petition. 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.
The previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination. The updated policy guidance rescinds the previous policy.
Under U.S. laws, the burden of proof in establishing eligibility for the visa petition extension is on the petitioner, regardless of whether USCIS previously approved a petition. The adjudicator’s determination is based on the merits of each case, and officers may request additional evidence if the petitioner has not submitted sufficient evidence to establish eligibility.
From mere denials to findings of fraud or misrepresentation. Navigating U.S. Immigration Laws in the pursuit of obtaining U.S. immigration benefits has never been simple, but now there is an added element: USCIS and the Department of State (DOS) have moved away from merely denying applications to trying to catch applicants for misrepresentations and fraud. Applicants can now expect DOS to closely review prior visa applications (DS-160s for non-immigrants) to check for consistency with current applications (for example, prior employment or travels to the U.S., etc.). USCIS is checking prior Form I-9s completed by non-U.S. citizens decades ago to see if any false claims to U.S. citizenship exist.
U.S. companies that use foreign workers should be put on notice of this heightened scrutiny. This past September, the Department of Justice (“DOJ”) and U.S. Immigration and Customs Enforcement (“ICE”) announced that a U.S. company would pay $95 million to settle both criminal and civil immigration charges stemming from the company’s hiring and rehiring of undocumented workers over a six-year period.
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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; [email protected]. For general information visit www.chuatinsayvega.com.
