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Personae Non Gratae: Extending H-1B and L-1B Visas Is Getting Tougher

It used to be pretty easy to get an extension on an H-1B or L-1B visa provided the employee had not used up his allotted time for holding such a visa. In fact, the USCIS instructed its adjudicators that prior determinations should be given deference if it involved the same parties and the same facts. If an H-1B or L-1B petition had been approved the first time, an extension was likely to be approved as well. Under the old policy, once an initial determination was made, so long as there was no material change to the employee’s position or circumstances, the employee was all but guaranteed an extension.

On October 23, 2017, in a Policy Memorandum, the USCIS explicitly rescinded Bush- and Obama-era guidance requiring deference to prior eligibility determinations for petitions to extend non-immigrant status. Adjudicators are now expected to conduct a fulsome and independent review of each Petition and make no assumption that the first Petition was properly approved. The new Policy Memorandum goes on to state that this independent review will ensure that adjudicators take into account any “updated guidance that is both more consistent with the agency’s current priorities and also advances policies that protect the interests of U.S. workers.” Since it has been no secret that the USCIS adjudicators have been scrutinizing newly filed H-1B and L-1B petitions more closely than they have in the past, this suggests that they will start doing the same with Petitions to extend the visas too.

In line with this administration’s efforts to constrain immigration generally, rescinding the deference policy will make it more difficult and less predictable for employers to extend the H-1B or L-1B visa for employees. Accordingly, when petitioning for an extension, employers should not automatically cut-and-paste from the letter of support that they originally submitted. In some cases, a fresh look at the Petition may be merited, so long as it is not inconsistent from the position previously articulated.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.