Visa-Renewal Policy About-Face Creates Uncertainty

October 30, 2017 | Henry M. Mascia | Corporate

The U.S. Citizenship and Immigration Services (USCIS) changed its policy on visa renewals. USCIS will no longer defer to prior visa approvals and will instead treat each renewal application as if it were an initial application. This represents a major turnaround to an immigration policy that had been in place for 13 years.

Since 2004, USCIS had directed its adjudicators to defer to prior determinations of visa eligibility when evaluating visa renewals, as long as the petition to renew involved the same parties and underlying facts as the initial petition. The only cases where the adjudicators did not to defer to prior determinations involved a material error in the initial petition, a substantial change in circumstances since the initial petition and new information regarding eligibility.

On October 23, 2017, USCIS rescinded the 2004 policy. USCIS explained that the 2004 policy appeared to place the burden on USCIS to obtain and review a separate record of the original proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same. USCIS concluded that the 2004 policy not only shifted the burden away from the petitioner but was also impractical and costly. In rescinding the 2004 policy, USCIS reiterated that the petitioner bears the burden of proving eligibility for a visa renewal.

In light of this new policy, employers and foreign nationals should expect the following:

  •  A visa renewal is not guaranteed, even if the facts are exactly the same as when the visa was initially granted.
  • The time and expense to complete a visa renewal petition will likely increase.
  • Immigration attorneys may seek more supporting documents for a visa renewal than they did in the recent past.
  • It is more likely that USCIS will deny a visa renewal petition.

The new USCIS policy will have the most noticeable effect in borderline cases. Under the 2004 policy, the employer and the foreign national could be assured that a visa renewal, based upon the same facts as the initial visa petition, would not be denied simply because the adjudicating officer had a different opinion from the officer who adjudicated the initial petition. That assurance is now gone. As a consequence, the net effect of the new policy is increased uncertainty for employers and foreign nationals.

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