Sam Adair Talks to Daily Journal on Tightened Nonimmigrant Visa Scrutiny

 

Sam Adair was quoted in the following article, which appeared in the Los Angeles and San Francisco Daily Journal on October 26, 2017.

US government tightens nonimmigrant work visa scrutiny

By Chase DiFeliciantonio

In a policy shift, the federal government announced that applications to extend certain work visas will now be scrutinized in the same way as the initial applications.

U.S. Citizenship and Immigration Services said the change would apply to certain nonimmigrant visas and is needed to combat fraud and protect U.S. workers.

According to Sharon Rummery, a spokesperson for the agency, the change was implemented Monday to comply with an executive order signed in April by President Donald J. Trump.

“The burden of proof is and should rightly be on the petitioner regardless of whether we’ve approved the request in the past,” Rummery said. “Our determination should be based on the merits of each case.”

Some business immigration attorneys decried the move as political and said it will create more work for them and increase expenses for their clients without real benefits.

Mitch Wexler, a Los Angeles- and Irvine-based partner at Fragomen, Del Rey, Bernsen & Lowey LLP, wrote in an email that the change is unnecessary and counterproductive.

“[It’s] ridiculous for the agency to no longer give deference to its previous adjudications,” Wexler wrote. “They get no additional filing fees for RFEs [Requests for Evidence] and will introduce even more uncertainty into the workforce of the biggest U.S. employers.”

The immigration service can ask for more information about an application through a Request for Evidence when it believes and application lacks required documentation or evidence.

According to a news release from the agency, the previous policy deferred to the findings of an already approved application, as long as the key elements were unchanged and there was no evidence of a material error or fraud.

Rummery said the change was needed to verify nothing had changed between an initial application and an application for an extension, adding in an email that the previous policy was outlined in an April 2004 policy memo and added to in a subsequent August 2015 policy memo.

“We think this is going to result in an increase in delays and an increase in expenses for employers who are filing these extension applications for their employees,” said Sam Adair, a business immigration attorney and an Austin, Texas-based partner at Graham Adair Inc.

Adair said L-1 intracompany transfer visas, O-1 extraordinary ability visas, TN visas based on the NAFTA treaty, and H-1B nonimmigrant work visas could be affected by the change.

“This will be especially true in O-1 and L-1 applications when there’s a fair amount of subjective evidence that’s going to be required for those petitions,” Adair said, adding he was less concerned about increased scrutiny of H-1B visas because they require a more objective standard for evidence.

“This is very much in line with previous efforts by the administration on immigration,” Adair added. “It’s going to create additional uncertainty for people who are already here.”