H1B Extension Updates – New Rules

H1B Extension Updates – New Rules

USCIS announced new H1B Extension update and rules indicating changes to its existing policies on how to review a H1B extension petition. Given below is a summary of the H1B extension updates and new rules.

H1B extension updates – Background

In order to determine an extension, USCIS released a memo in April 2004 called “Significance of a prior CIS approval for subsequent eligibility determination”. This memo gave guidance to USCIS officer on how to assess a petition for H1B extension. In August 2015, USCIS again released a memo called “L1B adjudication policy”. This memo gave similar guidance for L1B extension. In addition to the above mentioned memos. We now have a new policy to ensure USCIS processes petitions as per the current priorities of the industry. This is a direct effect from the Buy American and Hire American H1B Executive order signed earlier this year. The new memo revokes the policies from 2004 and 2015. 

H1B extension updates – summary

In the current memo, USCIS indicates that irrespective of previous H1B petition approval reviewing officer should consider the H1B petition as if it were new. In addition, there is no need for the officer reviewing the petition to give importance for previous approval for a current decision.  Moreover, it is up to the petitioner or employer to make sure they provide right documentation to ensure that the H1B petition meets the lawful criteria for extension. The burden of proof lies with the employer and not on USCIS. All the official policy 

What is the impact? 

While genuine employers have no problem other than submitting additional documentation. IT body shops that have past approvals need to submit additional documents that will likely gain more scrutiny. Moreover, with regulations for Wage level 1 tightening up H1B extensions will receive more RFEs and denials in coming years. 

 

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