Oct 25, 2017

Date: 10/25/2017

Two Major Shifts in Policies Impacting Non-Immigrant Visa Holders

1. USCIS Updates Policy to Ensure H-1B Employers Meet Burden of Proof for EVERY Non Immigrant Work Petition.

Under the updated guidance, published on October 23, 2017, USCIS is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for almost all nonimmigrant visa categories that use Form I-129, including H-1B and L-1 categories. Prior to this guidance, USCIS 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 the prior determination (i.e. approval). In other words, in the past, officers could use the approval of a prior petition as favorable evidence to approve a subsequent extension that maintained the same key elements.

Now, USCIS is specifically instructing adjudicators 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. In short, every nonimmigrant visa petition will be adjudicated within the four corners of the application, without considering any prior approvals of similar applications. The same burden of proof will remain on the Petitioner to meet each regulatory standard, every time. For example, a USCIS officer may issue an RFE on an extension, even if conditions remain unchanged from prior approved petitions.

2. Major Shift in Policy Related to Alcohol Related Charges and Its Impact on Non-Immigrant Visa Holders.

In a major shift in policy, USCIS will now take a hardline approach to individuals who have alcohol-related charges or offenses. Specifically, USCIS will now find that individuals who have an alcohol-related charge or offense ineligible for an extension of status request. In short, USCIS will deny any extension application for an individual with an alcohol related charge or offense. For such individuals, the only option to extend their status will be to leave the United States and process a visa stamp through a US consulate abroad. To do so, though, US Consulate will first require that a designated panel physician evaluate these individuals to determine if they are a threat to the property, safety or welfare of others in the US.

Prior to this shift in policy, only visa holders with (1) a single alcohol related arrest or conviction within the last five years; or (2) two or more alcohol related arrests were impacted. Now, a single alcohol-related charge can trigger action by USCIS. USCIS is proactively identifying alcohol-related offenses and denying requests for extension of status in any visa classification. Furthermore, in addition to these new USCIS actions, US Consulates are proactively revoking visa stamps of anyone who has an alcohol-related charge. In fact, the Department of State has begun issuing letters to affected individuals informing them of the revocation of the visa stamp. With that being said, the revocation only becomes effective upon departure from the US.

Finally, please note that an alcohol-related charge is a health related ground of inadmissibility, which means that a conviction is NOT required and charges alone can trigger inadmissibility. Please discuss this shift in policy with your employees and urge them to inform you of any alcohol related arrest, charge or conviction as it will adversely impact their ability to stay and work in the United States.

Please contact your Nair Law Representative for questions regarding these policy shifts and/or any other immigration related matter.,