Updates to USCIS Policies Impacting Employers and Temporary Visa Holders

Published on November 1, 2017

USCIS rescinds previous policy allowing for deference when deciding previously approved nonimmigrant visa petitions

USCIS announced that as of October 24, 2017, the agency will no longer apply deference to prior approved nonimmigrant visa petitions when reviewing a renewal or extension petition. Clients renewing their nonimmigrant status, including H-1B and L-1 visa holders, should expect a higher level of scrutiny by USCIS on their renewal petitions, including an increase in requests for evidence and notices of intent to deny. Accordingly, we urge our clients to contact us well in advance (at least 6-9 months) of the expiration of their nonimmigrant status so that we can start preparation of the visa renewal.

A single alcohol-related charge, regardless of when or where it occurred, can now affect your nonimmigrant status in the U.S.

Previous USCIS policy only considered an alcohol-related driving charge if it was: (1) a single arrest/conviction for an alcohol-related driving incident within the preceding 5 years of the visa application; or (2) if two or more arrest(s)/conviction(s) for alcohol-related driving incidents within the preceding 10 years of the visa application.

Rescinding this policy, USCIS has recently announced that it will take a hard-line approach to individuals with a single alcohol-related driving offence, regardless of the timing or filing procedure. This decision applies to individuals who are already living and working in the U.S. and applying for an extension of their nonimmigrant status, as well as applicants who are applying for a visa renewal at a U.S. Consulate abroad. We also urge individuals who plan on applying for a change of status, or F-1 optional practical training (OPT) employment authorization to be on high alert regarding the potential effect of an alcohol-related charge on their nonimmigrant visa petition in the future.

USCIS announces new Targeted Site Visit and Verification Program, with an increase in H-1B and L-1 employer site visits

USCIS has announced that it will take a more targeted approach and impose a higher frequency of site visits for H-1B employers. As of October 20, 2017, USCIS has accepted four recommendations from Department of Homeland Security (DHS) and employers should expect changes in the following areas:

• Targeted Site Visit and Verification Program: USCIS plans on rolling out a new Targeted Site Visit and Verification Program before the end of 2018 in response to the DHS recommendation that USCIS develop a program to track targeted site visits, program costs associated, and analyze adjudicated actions for unverified site visits.
• Program data sharing between agencies: USCIS has agreed to share site visit and other information obtained through this process with other departments and individuals, including Department of Labor and potentially external stakeholders.
• More site visits and procedure expected: USCIS further agreed to enhance the random sampling procedures of current petitioners and increase the career incentive for immigration officers to identify fraud and noncompliance among employers. This includes an anticipated increase in the number of required and random site visits as well as the procedure for H-1B employers and the petitioning process.
• In accordance with these increases in site visits, dissemination of data among agencies, and roll out of the Targeted Site Visit and Verification Program, USCIS will use the data collected in the adjudication process for H-1B petitions and to target certain employers USCIS identifies as potentially fraudulent or non-compliant.

In light of the significant impact of all of these recent changes to USCIS policies and adjudication on employers and their foreign national workforce, we recommend that employers contact their immigration attorney at Ryan Swanson to ensure that they are fully compliant with immigration laws and regulations.

Marsha Mavunkel can be reached at 206.654.2253 or [email protected].
Amy Royalty can be reached at 206-654-2260 or [email protected].
Janet Cheetham can be reached at 206.654.2235 or [email protected].
Joel Paget can be reached at 206.654.2215 or [email protected].