Today, USCIS announced a change in policy relating to the adjudication of both new and extension requests for most visa classifications that are filed using the Form I-129. Until now, the official USCIS guidance said that USCIS officers should give deference to previous filings when reviewing an extension request, for example for an H-1B or L-1. The new policy guidance says that officers must use the same level of scrutiny for extension requests as they would for a new filing, even if there are no material changes from a previously approved petition.
What does this mean for you?
On one hand, our experience has been that USCIS frequently questions various aspects of an extension request, even when it has not changed from the previous filing. For example, right now I am working on a request for evidence where USCIS is questioning whether the beneficiary’s degree is related to the position. This is for an extension petition where there is no change at all in the position, and of course no change in the degree. USCIS previously reviewed this issue when they approved the initial H-1B petition. They are now questioning it. Previously, our approach would have been to of course respond to the RFE with the information requested, but also to reference the policy guidance that said that USCIS should give deference to previous approvals. This change in policy guidance means that we can no longer cite this policy (this policy change does not change the depth or quality of our response – we have cited the previous policy but would never rely on it exclusively to answer an RFE) . It also signals that USCIS officers will take a harder look at extension requests, meaning it is now more important than ever that employers and employees ensure that all filings, whether initial requests or extensions, are well-documented and well-presented.
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