US makes renewal of H-1B visa more difficult

26 Oct 2017


The United States Citizenship and Immigration Services (USCIS) has tightened rules regarding issue of non-immigrant work visas even as the Trump administration is seeking to expand ties with India and engage New Delhi in its fight against the scourge of terrorism.

The Trump administration has brought more restrictions on the issue and extension of non-immigrant visas such as H-1B and L1, popular among Indian IT professionals.

The new visa policy, which is in line with the Trump administration's goal to protect American workers from discrimination, seeks to put the burden of proof establishing eligibility for visas is on the applicant even when an extension of the visa is sought.

Under the previous policy, if a person was once found to be eligible for a work visa, they would usually be considered for extension of their visa. Now, during every extension, they need to prove to the federal authorities that they are still eligible.

The burden of proof in establishing eligibility is, at all times, on the petitioner, USCIS said even as the previous memorandum of 23 April 2004 appeared to place this burden on this federal agency. "This memorandum makes it clear that the burden of proof remains on the petitioner, even where an extension of non-immigrant status is sought," USCIS said in a memorandum issued on 23 October.

External affairs minister Sushma Swaraj said she had raised the issue of H-1B visas with visiting US secretary of state Rex Tillerson and had asked the US to do nothing that would adversely affect India's interests. Swraj told Tillerson that people-to-people contacts had played a critical role in the development of India-US relations.

"This is most evident in our mutually beneficial digital partnership, driven by our skilled professionals. In this regard, we have also discussed the very significant contribution to the US economy of Indian skilled professionals who travel and work under the H1-B and L-1 visa programmes," said Swaraj.

Swaraj said while there had been no change made yet to the H1-B rules, Indian professionals would be impacted if the US Congress passed a private member's bill in this regard. "H1-B rules can be changed either by an executive order (issued by the US President) or by the US Congress, and we are talking to both sides," she added.

American Immigration Lawyers Association president William Stock said the change was being made retroactively and would affect people already living in the country and not just new visa applicants.

"In adjudicating petitions for immigration benefits, including non-immigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The burden of proof in establishing eligibility is, at all times, on the petitioner," USCIS said.

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