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New USCIS Policy Requires Employers to Submit Additional Documents for Employees' Work Visa Extensions and Renewals

The Trump administration has announced a significant change in how USCIS processes petitions for visa renewals/extensions. As explained in more detail below, USCIS now requires additional documents in work visa renewal cases, which is expected to add considerable delays to case processing.

What is the change in policy?
In a Policy Memorandum dated October 23, 2017, USCIS announced that it will treat all petitions for extension with the same scrutiny as they would an initial petition. Previously, individuals who already proved they were eligible for an immigration benefit before were presumed to maintain basic eligibility at the time they would petition for renewal or extension, unless there was a change in the facts of the case. Therefore, immigration law and immigration regulations do not require applicants for renewal/extension to re-submit the same evidence that USCIS already has from the prior application, to the extent the applicant is seeking the same type of benefit. Moreover, a prior Policy Memorandum, dated April 23, 2004, advised that USCIS officers may rely on prior approvals when deciding on a petition for extension, in order to streamline the process and make it more efficient.

The new Policy Memorandum does not change the law or regulations. Indeed, the new Policy Memorandum recognizes that the regulations do not require applicants or their employers to re-submit initial evidence at the time of a petition for renewal/extension when there are no changes in the facts of the case. However, the Policy Memorandum states that USCIS has authority to request additional evidence, including evidence that USCIS already has from the initial filing.

What type of applications are impacted?
The new policy will directly impact all visa petitions for extension. In reality though, the most common types of cases where this policy applies are petitions for extension or H-1B, H-1B1, L-1, and TN visas, among others.

How will this change processing of I-129 Petition for Nonimmigrant Workers?
Based on this new Policy Memmorandum, applicants and employers should expect an increase in Requests for Evidence (RFE) that, in turn, will lead to processing delays. Requests for premium processing will not eliminate the issuance of the RFEs, as premium processing only requires USCIS to act on the petition within a certain amount of time, not to issue a final decision. Failure to properly and timely respond to these RFEs will lead to petition denials, even if USCIS is already in possession of the requested information from and earlier petition.

How can employers and employees avoid processing delays and RFEs?
In light of this new Policy Memorandum, employers are advised to treat all renewal petitions as initial filings and include all statutorily required evidence for both the job and the employee, even if they believe USCIS already has that information from earlier petitions. Eligibility should not be merely implied. Employers should review the statutory requirements closely and ensure they submit supporting evidence for each and every required element.

We will continue to monitor the implementation of this new Policy Memorandum and we will provide updates as needed. In the meantime, if you have any questions about employment-based immigration matters or other immigration-related issues, do not hesitate to contact Raluca (Luca) Vais-Ottosen at (608) 252-9291 or rvo@dewittross.com.

About the Author

Raluca has assisted numerous clients with immigration matters ranging from family-based and individual immigration applications, to employment related visas and I-9 Employment Eligibility Verification issues. In addition to her immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by state and federal agencies, as well as employment litigation.

Contact Luca by email or by phone at (608) 252-9291.

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