All I-129 petitions, whether initial requests or requests for extension of visa status, will be subject to the same level of scrutiny, USCIS has confirmed. The agency will no longer defer to the findings of a previously approved petition even when the key elements of the petition have remained unchanged. This will affect most nonimmigrant workers in the U.S.

This is another policy change following President Donald Trump’s “Buy American, Hire American” Executive Order.

Each case will be reviewed on its own merits and the burden of proof in establishing eligibility will remain, at all times, with the petitioner. Employers filing requests for extension for their employees cannot assume that if the petition was previously approved, it will be approved again. This will heighten the anxiety that employers and foreign national employees are already feeling due to the Administration’s stance on foreign national employees and the protection of U.S. workers.

The USCIS policy regarding “deference” has been in effect since it was set out in a 2004 policy memorandum.  In a separate 2015 policy memo regarding L-1B adjudication, USCIS reiterated its deference policy with regard to L-1B extensions.  Both the 2004 memo and the section of the 2015 memo regarding deference now have been rescinded.

The official rescission of the deference policy comes as no surprise. Immigration attorneys and employers have seen heightened scrutiny in the form of numerous Requests for Evidence (RFEs) from USCIS seeking further documents and information in order to approve extension requests. At first, such RFEs appeared to affect primarily H-1B cap cases, but it then became clear to practitioners and petitioners that extensions also were being subject to RFEs at an increased rate. USCIS’ latest policy memorandum simply formalizes what had become the apparent policy.

 

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.