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L1B visa extensions in firing line now, USCIS cancels old 'default' mode and ups scrutiny

In another first, the Trump administration is escalating scrutiny for extension of L1B applications to the same level as new applications to fit into the larger theme of protecting American workers which cuts to the heart of Trump's appeal and his rise to power in the US. This policy goes into effect immediately.

The L1B visa worker typically works in the US on an intracompany transfer with the option of working for up to five years in the U.S. This category is not subject to an annual limit or prevailing wage requirements.

As Trump goes about filling long-empty slots in various government agencies, newly minted bureaucrats are outdoing each other in playing to Trump’s favourite brew - pushing back against immigration, non-immigrant visas and in effect, keeping his core base constantly engaged with the same suspicion of outsiders that riled them enough to put Trump into the White House last November.

The latest smackdown by United States Citizenship and Immigration Services (USCIS), first reported here, is sure to send cheers through the ranks of Trump’s most loyal supporters on immigration reform.

Link: Full text of policy memo rescinding earlier guidance on visa extensions

The embattled H1B visa runs into a stone wall in America

The embattled H1B visa runs into a stone wall in America

The updated guidance makes it clear that extensions will not happen by default. The burden of proof falls entirely on the petitioner. With every additional move, the USCIS is basically sending strong and repeated signals that the difficulty level of coming through the H1B/ L1 route on Planet Trump and then staying in the US on the same visa is unlike at any other time in the history of these work visas.

“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. 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,” says Lee Francis Cissna, newly appointed director of the USCIS.

The new USCIS chief is no stranger to the powerful liaison between the lynchpins of immigration policing in the US - Department of Homeland Security and USCIS. Going by his varied experience in visa matters across several arms of government, this is likely to be just the first of several screw tighening measures after his arrival at the USCIS top job.

USCIS summary of the latest guidance on how to deal with extensions:

Under updated policy guidance, U.S. Citizenship and Immigration Services (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 guidance applies to nearly all nonimmigrant classifications filed using Form I-129, Petition for a Nonimmigrant Worker.
“USCIS officers are at the front lines of the administration’s efforts to enhance the integrity of the immigration system,” said USCIS Director L. Francis Cissna. “This updated guidance provides clear direction to help advance policies that protect the interests of U.S. workers.”
As before, adjudicators must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. 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. 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 the law, 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. 

Link: Our complete coverage of the H1B visa on Planet Trump


Updated Date: Oct 24, 2017 20:03 PM

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