New visa policy says extensions for workers are not automatic

As the Trump administration looks to curtail the ability of foreigners to live and work in the United States, many of the changes are happening through executive orders and policy memos, not legislation.

The latest shift affects holders of the H-1B visa favored by tech companies, as well as other work visas, who are seeking to extend their stays.

Under a new U.S. Citizenship and Immigration Services policy issued Monday, foreigners applying for a visa extension will no longer be given “deference” if their job descriptions haven’t significantly changed. This means that regardless of how long a foreigner has been in the country, immigration officers must review the application as if it were new.

It is the first significant policy change ordered by Lee Francis Cissna, who was sworn in as director of the immigration agency this month.

It’s significant that the change is being made retroactively to people already living in the country and not just to new visa applicants, said William Stock, president of the American Immigration Lawyers Association.

Extensions are common for H-1B visas, which are heavily used in Silicon Valley to employ foreigners with specialized skills for a three-year period. It is a common path for an H-1B holder to apply for extensions — in one- to three-year increments — until they receive permanent residency through a green card.

Previously, if a foreigner’s job description was unchanged, immigration officials would approve the extension under a 2004 rule that instructed them to “defer to prior determinations of eligibility,” except in extreme circumstances.

“By eliminating deference to prior decisions, it opens the door (for officials) to say, ‘I’m changing the rule now, and you didn’t comply with it two years ago when it wasn’t a rule — but, tough,’ ” Stock said.

More than 250,000 H-1B holders filed for an extension in fiscal year 2016. That compares to about 213,000 in fiscal year 2015.

The immigration agency argued that deferring to previous decisions “had the unintended consequence of officers not discovering material errors in prior adjudications,” according to the memo. “While adjudicators may, of course, reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point.”

Immigration officials have already been cracking down on certain work visas by issuing an increased number of “requests for evidence,” in which an employer must provide additional proof that a foreigner is needed to fill a certain job.

Roy Beck, president of NumbersUSA, a group that advocates for less immigration, applauded the move as a way to open up more jobs for Americans.

Beck said that no matter how long a foreigner has been in the country doing a certain job, that worker does not have a right to it if an American has the same skill set.

“We feel that every job should start out with the idea that this job belongs to an American,” he said.