The healthcarestaffing and IT staffing industries have seen a large uptick in H-1B amendmentsbeing generated as a result of the USCIS foolish Simeio Solutions decision. One issue that has come as a surprise to manyclients is that an H-1B amendment is essentially no less work than a new H-1Bcap-subject or H-1B extension petition.
USCIS policy ondeference to prior petitions is explained in a 2004 USCIS Memorandum by WilliamYates. Technically, USCIS officers aresupposed to give deference in extension petitions unless,
(1) it is determined that there was amaterial error with regard to the previous petition approval; (2) a substantialchange in circumstances has taken place; or (3) there is new material informationthat adversely impacts the petitioner’s or beneficiary’s eligibility. Material error, changed circumstances, or newmaterial information must be clearly articulated in the resulting request forevidence or decision denying the benefit sought, as appropriate.
The problem is thatthis section is made toothless by the next paragraph:
[t]his memorandum does not in any wayrestrict or impact an adjudicator’s ability to deny, in the exercise of his orher discretion, the beneficiary’s simultaneous request to extend his or herstay in the United States in the same classification.
As a result, theUSCIS only pays lip-service to deference in amendment and extension petitions. The adjudicating officer will casuallymention one of the three instances and then ask for entirely new information. The officer will usually point to thesentence that the memorandum is not “in any way” meant to restrict the adjudicator’sability to deny a case.
Essentially allH-1B legal points must be re-raised by the employer and will ultimately be re-adjudicatedby the USCIS.