The USCIS has updated one of its policy which states that the burden of proof in establishing the eligibility for the visa petition lies on the petitioner regardless if the USCIS approved the previous petition.
“The previous memorandum of April 23, 2004, appeared to place this burden on this federal agency, said the USCIS. “The new memorandum makes it clear that the burden of proof remains on the petitioner, even where an extension of non-immigrant status is sought,” as confirmed by the USCIS said in its latest memorandum issued on October 23.
The previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination.
The updated policy guidance rescinds the previous policy.
For example….. Initially H-1b visa was filed for the position of a Project Manager. Currently the employer is seeking extension for the same job position, then the employer is responsible for establishing evidence that the beneficiary is eligible for the requested class of non-immigrant visa. In this case it would include the establishing the educational credentials, professional experience, and so on.
The new policy update will make an already complicated application process even more onerous as it will require additional documentary evidence every time the beneficiary seeks to apply for extension of his non-immigrant visa.
The new policy is said to in line with the Trump administration’s goal to protect American workers from discrimination and replacement by foreign labor. The new policy is expected to ensure that only qualified H-1B workers will be allowed to stay in the US and will help crack down on visa fraud and abuse.
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