USCIS Toughens Scrutiny of Nonimmigrant Extension Filings

Executive Summary

• In a significant policy reversal, USCIS officers are no longer bound by previous petition approvals when reviewing an H-1B, L-1, or other nonimmigrant extension request.
• Officers are authorized to readjudicate a beneficiary’s eligibility for a nonimmigrant classification each time an extension of stay is requested, even if there has been no change in circumstances.
• An increase in requests for evidence and processing times is expected.  

The situation

U.S. Citizenship and Immigration Services (USCIS) has rescinded a longstanding policy that required adjudicators to give deference to the agency’s previous determinations of eligibility when reviewing an application for a nonimmigrant extension of status.

USCIS is taking the position that adjudicators are no longer bound by past petition approvals when reviewing an H-1B, L-1 or other nonimmigrant extension request.  Officers have been given broader authority to readjudicate a foreign beneficiary’s eligibility for a nonimmigrant classification each time an extension request is filed – even in cases where there has been no change in facts since the initial petition was approved.

What has changed

Under prior policy, officers were required to give deference to past approvals unless there was a substantial change in circumstances that affected the beneficiary’s eligibility for the nonimmigrant classification, the agency made a material error in the previous approval, or where new information adversely affected a beneficiary’s eligibility for the nonimmigrant status.  That guidance, in place since 2004 and reaffirmed for L-1B petitions in 2015, has now been rescinded.

Looking ahead

Employers should be prepared for the consequences of the agency’s new policy:

• More requests for evidence:  The new guidance is expected to result in a significant increase in requests for evidence in H-1B, H-1B1, L-1, O, P, TN and other nonimmigrant extension cases.  Though USCIS regulations do not require petitioners to submit supporting documentation when filing extensions for some nonimmigrant classifications, the agency is urging its officers to request evidence in all extension filings.
• Longer processing times:  An increase in scrutiny is likely to mean longer processing times, compounding the delays that have plagued extension filings for some time.  Though premium processing is available for some nonimmigrant classifications, suspensions of premium processing for extensions have occurred in the past and could be reimposed. 
• Work authorization disruptions and other consequences:  Though foreign nationals in E, H, L-1, O, P, and TN status, among others, receive a 240-day automatic extension of status and work authorization following the timely filing of an extension petition, processing times may extend beyond this grace period.  This can result in employment disruptions and impede a foreign national’s ability to renew a driver’s license, among other negative consequences.
• Increased extension denials:  Tougher scrutiny and new agency interpretations of nonimmigrant eligibility criteria could lead to more frequent extension denials.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.