H-1B, other extensions may become smoother in Biden era

US visa

Revoking Trump memo, new USCIS policy requires deference to prior determinations.

Extension of H-1B work visa, widely used by Indian information technology professionals, and other immigration requests may become smoother in the Biden era with the USCIS instructing its officers to generally defer to previous approvals.

New policy guidance issued by the United States Citizenship and Immigration Services Tuesday instructs such deference in requests involving the same parties and facts unless there was a material error, material change, or new material facts.

With this update, USCIS is reverting in substance to prior long-standing guidance issued in 2004 that was rescinded in 2017 during former President Donald Trump’s administration.

READ: Trump signs H-1B visa executive order ‘Buy American and Hire American’ (April 19, 2017)

“This update is in accordance with President (Joe) Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” USCIS said.

The executive order directs the secretary of homeland security to identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits.

Affording deference to prior approvals involving the same parties promotes efficient and fair adjudication of immigration benefits, USCIS said.

In addition, the new guidance requires officers to obtain supervisory approval before deviating from a prior approval on the same facts — a significant departure from prior policy and practice.

USCIS also affirms that the agency will defer to USCIS determinations only; it will give consideration to determinations by other agencies.

Rescinding the 2004 policy, USCIS treated any extension request as new application during the Trump era.

READ: White House wants more regulations on H-1B visa rules, report (June 8, 2017)

This had led to an increase in requests for additional documentation (known as requests for evidence – RFEs) significantly, even on petitions with multiple prior approvals on the same facts.

In other instances, there was an outright denial of visa extensions on various grounds.

As there is an annual cap of 85,000 new H-1B visa allotments, requests for visa extensions are typically much higher in number. For instance, in fiscal 2019, as many as 79,423 new H-1B visas were issued to Indians, while visa extensions totaled 199,000.

Reverting back to the prior policy should decrease the number of extension RFEs and reduce their processing times, according to Fragomen, a leading US immigration firm.

However, impact on adjudication trends will depend on how USCIS officers implement the policy in practice, it said.

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