USCIS changed its policy on H-1B renewals. On October 23, 2017 USCIS issued a policy memorandum entitled “Recission of Guidance Regarding deference to Prior Determinations of Eligibility in the Adjudication for petitions for Extension of Nonimmigrant Status.” The memorandum basically says that all H-1B renewal filings must now be decided as if they are new applications.
What was the policy before the October 23rd Policy Memorandum?
In 2004 USCIS released a memorandum which said that H1B examiners should give “deference” to H-1B renewal petitions where the petitioner and beneficiary were the same and the facts of the case remained the same. In other words, if the H1B employee was working for the same employer in the same position, the examiner should respect the prior H-1B decision and approve the renewal petition.
The examiner was not obligated to approve the renewal, however. The examiner could still deny the renewal if there were material errors in the prior petition, changes in circumstances, or substantial changes in between the filing of the initial application and the renewal.
Why is USCIS changing the policy?
According to the October 23, 2017 memorandum, USCIS is changing its policy because:
- It feels that the previous policy required the examiner to review an old H-1B filing and compare it to the new filing to determine if the facts between the two cases had changed in a material way. This is shifting the burden of proof from the H-1B filer to prove they have a legitimate case, to USCIS to prove that the new filing is not eligible for H-1B status.
- It also cites to the Immigration and Nationality Act section 291 which says the burden of proof is on the H-1B petitioner to prove its case. USCIS argues that the 2004 memorandum inappropriately required USCIS to prove that a case was not eligible for an H-1B rather than to require the petitioner to prove that it is eligible for an H1B.
- The 2004 memorandum unduly limited the fact-finding authority of the examiner.
Do I agree with the reasoning above?
Not really, but it doesn’t matter what I think about this for now. My guess is that as we see how this new policy is implemented over the next several months, we will see some type of lawsuit or action filed against USCIS if there is systematic abuse and delay in the H-1B renewal process.
How does this affect your H-1B renewal filing?
As of the time of writing this post the new policy is less than a week old. Immigration attorneys are not yet able to see any patterns in H-1B renewal application decisions. As an experienced H1B attorney, I tend to incorporate many of the documents from the initial H-1B filing into renewal filings. I believe that most immigration lawyers that I know also do the same. If I’m being cynical, I would guess that USCIS will use this memorandum to issue more unwarranted requests for evidence to further delay the processing of H-1B petitions. The employer and employee may be required to submit more documents than usual to support their cases. Ultimately, if your attorney has proven the elements of your H-1B petition, the case should be approved. The question is how long it will take for the approval notice to be issued.
Over the past several months I have noticed a slowing down of processing times in many types of immigration matters. What was once taking six months is now taking ten months, etc. I also recently blogged about USCIS now requiring interviews for employment-based green card applicants and how this will slow down processing times for Adjustment of Status applications. My conclusion is that the current administration is intentionally adding unnecessary roadblocks to the immigration process. America ultimately loses when the best and the brightest in the world are deterred from immigrating here. For some concrete examples of how much immigrants contribute to innovation and the economy in general, read my blog post on the contributions of immigrant entrepreneurs.