Extensions of most work-related petitions will now receive additional scrutiny

Submitted by micol on Fri, 12/01/2017 - 12:46

U.S. Citizenship and Immigration Service ("USCIS") recently announced it is abandoning its long-standing policy of deference to prior determinations of I-129 petitions. Under its new policy memorandum, released October 23, 2017, adjudicators are now required to review extension requests with the same degree of scrutiny as initial petitions receive. Form I-129 is the most frequently used petition filed with USCIS by companies when they seek to employ foreign nationals in a variety of occupations including physicians, accountants, architects, engineers, scientists, professors, software developers, and management professionals. This new policy is likely to impact employers filing on behalf of H-1B professionals, L-1A managers and L-1B persons with specialized knowledge, TN professionals from Canada and Mexico, O-1 persons of extraordinary ability, and several other categories of workers. Most of these petitions are valid for an initial three-year period, and many of these visa categories permit an employer to seek an extension (typically 1 - 3 more years at a time) if they wish to continue to employ the professional worker beyond that initial period. As a result of this policy change, employers are likely to experience delays in the processing of extension requests due to an expected increase in the issuance of Requests for Evidence (RFEs). 

Under this new no-deference policy, adjudicating officers must undertake a compete review of each and every element of the extension request, rather than focusing on significant changes to the previously approved petition or for material error and/or evidence of fraud. In light of the fact there have not been significant instances of fraud in extension requests, many employers and immigration professionals believe this policy shift is frivolous and is another example of addressing a non-existent problem under the guise of protecting the interests of the American worker, while simultaneously driving up costs for employers of professional non-immigrants in the U.S. In fact, fraud protections are already in place and many I-129 petitions require payment of a $500 anti-fraud fee solely to fund fraud investigation into these visa categories. As a practical matter, petitioners and their employees should expect longer adjudication periods and should consult with their immigration counsel concerning timing for filing extension requests and in advance of making any travel plans, in light of the increased likelihood of delays.

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