U.S. makes H-1B visa renewals tougher

New rules require a petitioner to re-substantiate his application during renewal

Fresh changes in rules notified by the U.S. Citizenship and Immigration Services (USCIS) for renewal of non-immigrant visas will severely impact H-1B visa holders. Petitions for renewal of H-1B visas, particularly when the underlying facts that supported the original petition have not changed, are currently considered with a presumption of approval, but that will no longer be the case, USISC said in a statement issued Monday late. Consequently, the burden of proof will be on the petitioner to substantiate his application even when nothing has changed since the previous petition.

The new rules are in line with the Donald Trump administration’s Buy American, Hire American policy, USCIS said. Increasing restrictions on H-1B visa programme remains a point of concern in the India-US relations, as a majority of these guest workers are Indians. The new changes were announced even as a comprehensive review the H-1B programme is underway.

“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,” a statement by the USCIS said.

“USCIS officers are at the front lines of the administration’s efforts to enhance the integrity of the immigration system,” said USCIS Director L. Francis Cissna. “This updated guidance provides clear direction to help advance policies that protect the interests of U.S. workers.”

The new rules will impact all changes sought by H-1B visa holders, said Karthik, a New Jersey Indian American who did not want to give his last name, as companies bar temporary workers from commenting on the issue. Primarily, an H-1B worker goes to the USCIS for three types of changes to his status - amendment, transfer and renewal. Amendments are sought when an H-1B employee changes the location within the same company; transfer is sought when he moves from one company to another, and a renewal is sought at the expiry of the visa, which is usually issued for three years at the beginning. “…adjudicators must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought,” the USCIS has said.

The previous policy — which has been in force for 13 years — 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.

The burden of proof in establishing eligibility for the visa petition extension is on the petitioner, regardless of whether USCIS previously approved a petition, the agency said. “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.”