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.

In other words, previous approval of an H-1B, L-1 or other nonimmigrant petition is no longer assurance that an extension application will be approved.  USCIS noted that 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, USCIS said.

USCIS explained that 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,” USCIS said, adding that 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.”

This announcement coincides with USCIS’s recent toughening of H-1B eligibility standards for entry-level positions paying entry-level wages, both for computer professionals and other types of professionals.

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