H1B Visa Extensions to Become Smoother: USCIS Announces Return to its 2004 Deference Policy

When extending visas such as the H-1B work visa, the US Citizenship and Immigration Services has told its officials to defer to previous approvals.

The United States Citizenship and Immigration Services (USCIS) is reverting to its previous, long-standing guidance from 2004. This guidance had been withdrawn by the Trump administration, which now requires that each visa extension be treated as a new application. Which resulted in an increase in demands for extra documents, resulting in higher administrative costs and delays for sponsoring employers. Or, in some cases, visa extensions were flatly denied for a variety of reasons.

However, USCIS advises that officers can not rely on a prior approval if there are material changes or new material knowledge that casts doubt on the benefit’s eligibility. If there was a material mistake in the prior judgement that resulted in the visa being granted, the policy would not apply.

The above announcement of a favourable policy change by The United States Citizenship and Immigration Services (USCIS), effective immediately, is a result of US President Joe Biden’s Executive Order on “restoring faith in our legal immigration systems”. Got a question? We’ve covered it for you.

What Does the Policy Change Imply?

• With immediate effect, USCIS will reinstate its 2004 policy of deferring to prior determinations of eligibility for H1B visa extension.
• The change will reduce the number of Requests for Evidence (RFEs) for H1B visa extension and consequently curtail the processing times of H1B visa extension applications.

What Effect Will the Deference Policy of 2004 Have on H1B Visa?

• H-1B visa extensions will be smoother.
• Foreign national employees and employers will have better clarity from employment as well as planning perspective.

What Are the Instances Where the 2004 Deference Policy will Not be Applicable?

• Material changes
• Availability of new material information that undermines eligibility
• Material error in the prior decision that led to granting of the H1B visa

What was the Policy Prior to this Favourable Change?

• The 2017 policy during the Trump administration had revoked the more permissive policy of 2004; as per the 2017 policy, each visa extension was considered a new application.

What were the Challenges Associated With the Trump-era Policy?

• Increased administrative costs for sponsoring employers, owing to an increase in requests for additional documentation (requests for evidence-RFEs)
• Processing delays
• Anxiety and uncertainty among both foreign national employees and their employers
• In some instances, there was an outright denial of visa extension on various grounds

An Instance where an H1B Visa Holder was Denied Extension Despite no Change in Facts/Job Profile (during the Trump administration)

• One applicant’s H1B visa extension application was denied on the ground that the job was not a speciality occupation. USCIS had taken this stand even though the original H1B visa was issued owing to the job being a “speciality occupation”.

A Quick Look at the Number of H1B Visa Extensions Issued to Indians

• H1B visas issued to Indians (in fiscal 2019): 79,423
• H1B visa extensions: 1.99 lacs

The revival of the 2004 Deference Policy might not completely prevent a visa extension denial; however, it will definitely streamline the processing of H1B visa extension applications and restore the degree of predictability and consistency necessary for family security, business operations & growth and continuing economic development.

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