Sun. Sep 25th, 2022

We Pave Your Career Path

H-1B visa extensions will be smoother as the Trump-era memo is revoked

3 min read
DHS Final Public Charge Rule

H-1B Visa Extensions: The United States Citizenship and Immigration Services (USCIS) has taught its officials to defer to past approvals when extending visas, for example, the H-1B work visa.

So, USCIS is returning to its previous long-standing guidance gave in 2004. The Trump government had revoked this guidance and required that each visa extension be treated as a new application. This had prompted an expansion in requests for extra documentation (known as requests for proof – RFEs). Which increased administrative costs for sponsoring employers and led to delays. Or in other instances, there was an outright denial of visa extensions on various grounds.

To show: Over the past few years, even, when there was no change in facts. For example, the work profile, the visa extensions sought for H-1B holders were denied on the ground that the job is not a specialty occupation. This stand was taken by USCIS. Even as the original H-1B visa had been issued owing to the job is a specialty occupation.

However, USCIS alerts that officers may not defer to an earlier approval. When there are material changes or where new material data is available that undermines eligibility. Which includes publicly available information influencing eligibility for the benefit. Also, the policy will not apply if there was a material error in the prior decision that led to granting of the visa.

USCIS revokes Trump-era memo for H-1B visa extensions

Rajiv S. Khanna, managing lawyer at Immigration.com told, “Business entities make plans based on consistency and predictability. Not having the option to depend on the availability of professional workers was not helpful for business nor to non-citizen workers.”

“It was in every case very hard to explain to any reasonable individual that an immigration benefits application. That had been approved could be denied later during an extension, even without any changes in the facts. Thus, the rule of law was usurped by unfettered discretion. Further, disputing matters of discretion in courts was a troublesome and time-consuming task,” added Khanna.

There is an annual cap of 85,000 new H-1B visa allotments, thus typically visa extensions are substantially more in number. For example, in fiscal 2019, the number of new H-1B visas gave to Indians was 79,423 (which may include non-cap visas). Visa extension numbers were much higher at 1.99 lakh.

[The US will continue with its 2020 student immigration policies]

This favorable policy change announcement follows US President Joe Biden’s Executive Order pointed toward restoring faith in the legal immigration system. Mitchell Wexler, partner, Fragomen, a global immigration law firm told TOI, “After the 2017 Trump-era policy memo dispensing with the more permissive deference policy. RFEs increased significantly, even on applications with numerous earlier approvals on the same facts. Returning to the earlier policy should decrease the number of extension RFEs and reduce their processing times.”

Wexler summarizes by saying, “This is a welcome, common-sense change. Everything it does is allow USCIS not to re-adjudicate eligibility requirements that it previously had. Of course, required updating of facts and circumstances is still required which is extremely reasonable.”

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