By: Niki Namazi
On October 23, 2017, the United States Citizenship and Immigration Services (“USCIS”) updated its policy to require a stricter burden of proof showing for nonimmigrant worker extension petitions. This new update applies to nearly all nonimmigrant classifications that use an I-129 form, petition for nonimmigrant workers. Essentially, when seeking a visa extension, H1B visa holders will now face the same level of scrutiny as first-time applicants.
H1B visas allow U.S. companies to temporarily employ foreign workers with specialty degrees, such as software engineering, making the program particularly popular among foreign tech workers. Accordingly, this update could mean bad news for the many tech companies in Silicon Valley who rely on nonimmigrant worker visas to recruit highly skilled engineers from overseas.
This new USCIS update rescinds a previous policy where officers were instructed to give deference to the findings of a previously approved petition where the key elements were unchanged and there was no evidence of fraud or material error. What this means for nonimmigrant worker visa holders is that their visa extensions will not be entertained by default.
U.S. law currently sets the cap for H1B visa recipients at 85,000 per year. These visas are awarded to the employers, and conditioned on specific positions. In the past, tech companies have lobbied for an expansion of the program. However, the future of the program remains uncertain in the wake of the current administration.
According to the USCIS Director L. Francis Cissna, the underlying policy behind the update is to enhance the integrity of the United States immigration system, and to protect the interests of U.S workers. In an effort to implement a “Buy American, Hire American” strategy, President Donald Trump has particularly eyed the H1B program for reform. Supporters of the H1B program claim that these visas bring in much needed overseas talent to fill a job gap, while critics argue that H1B visas promote outsourcing. As of now, these new guidelines could lead to a more costly and inefficient process for employers; however, it is still unclear if they will dissuade companies from hiring foreign workers.
The full USCIS policy update can be found here.
