USCIS Rule Change Affecting H1-B Renewals

The Trump administration is looking to curtail the ability of foreigners to live and work in the United States. In furtherance of this effort, the Administration is making many changes through executive orders and policy memos and not seeking legislation or working with Congress.

The latest tactic affects holders of the H-1B visa favored by tech companies, as well as other work visas, who are seeking to extend their stays.

Under a new U.S. Citizenship and Immigration Services policy issued Monday, foreigners applying for a visa extension will no longer be given “deference” if their job descriptions haven’t significantly changed. This means that regardless of how long a foreigner has been in the country, immigration officers must review the application as if it were new.

It is the first significant policy change ordered by Lee Francis Cissna, who was sworn in as director of the immigration agency this month.

It’s significant that the change is being made retroactively to people already living in the country and not just to new visa applicants, said William Stock, president of the American Immigration Lawyers Association.

Extensions are common for H-1B visas, which are heavily used in Silicon Valley to employ foreigners with specialized skills for a three-year period. It is a common path for an H-1B holder to apply for extensions — in one- to three-year increments — until they receive permanent residency through a green card.

Previously, if a foreigner’s job description was unchanged, immigration officials would approve the extension under a 2004 rule that instructed them to “defer to prior determinations of eligibility,” except in extreme circumstances.

“By eliminating deference to prior decisions, it opens the door (for officials) to say, ‘I’m changing the rule now, and you didn’t comply with it two years ago when it wasn’t a rule — but, tough,’” Stock said.