The policy reversal is a blow to companies as well, especially large technology firms in Silicon Valley and India that rely on H-1B visas to bring in highly skilled software engineers and product managers from India and other places.
"This memorandum makes it clear that the burden of proof remains on the petitioner, even where an extension of non-immigrant status is sought", NDTV reports quoting USCIS's latest memorandum issued on October 23. The H-1B visa is issued to high-skilled non-Americans to work at USA companies for a span of three years, after which it can be renewed. However, with the newer restrictions, the applicant will be required to prove to the federal authorities that they are still eligible everytime they seek an extension. The previous memorandum, which had been in effect since 2004, placed the burden on the federal agency. This comes at a time when External Affairs Minister (EAM) Sushma Swaraj on told US Secretary of State Rex Tillerson that the US must not take any decision that adversely impacts Indian people.
The previous policy made a person eligible for a work visa initially and later they could extend their visa.
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. A report in Times of India mentions that Swaraj, talking about their discussion, said, "This is most evident in our mutually beneficial digital partnership, driven by our skilled professionals".
President of the American Immigration Lawyers Association William Stock disclosed the change is being made retroactively to people officially living in the nation and not simply to new visa candidates.
The H-1B is a popular visa pathway for skilled workers outside the US who want to find work in the country.
"Under the law, the burden of proof in establishing eligibility for the visa petition extension is on the petitioner, regardless of whether USCIS previously approved a petition", it said, adding the adjudicator's determination is based on the merits of each case, and officers may request additional evidence if the petitioner has not submitted sufficient evidence to establish eligibility.
Other visas impacted by the new guidance include L-1, for intracompany transfers, TN for Canadian and Mexican citizens, and O-1, for those with "extraordinary abilities".