USCIS Rescinds Deference Policy on Nonimmigrant Visa Extension Petitions

October 31, 2017

On October 23, 2017, the USCIS announced a significant change in policy in the adjudication of nonimmigrant extension of status petitions that will impact H, L, O, and P nonimmigrants. In the agency's new Policy Memorandum, "Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status," the USCIS reversed its policy of giving deference to prior eligibility determinations on subsequent petitions requesting extensions of stay. The previous policy, set forth in an April 23, 2004 Memo, instructed adjudicators to yield to prior approval decisions when reviewing eligibility in extension petitions involving the same parties (petitioner and beneficiary, i.e. employer and employee) and the same underlying facts (same terms and conditions of employment), absent any findings of material error, changed circumstances, or adverse information. This previous policy was instituted to curb the then spate of adjudicators questioning or re-adjudicating prior determinations where there were no material changes affecting eligibility for the extension request. 
 
Pursuant to the updated USCIS policy, extension of stay petitions involving the same parties and same underlying facts will now be subject to the same level of scrutiny as completely new petitions, without consideration of prior approvals. While the USCIS acknowledged that the immigration regulations do not require petitioners to submit initial evidence when requesting extensions where there are no material changes, the change in policy is largely based on the USCIS' efforts to reassert its authority to request additional evidence, and to emphasize the petitioning employer's burden to prove eligibility for extension. This sentiment appears to be in line with the current Administration's “Buy American, Hire American” Executive Order, which aims to prevent abuse of the nonimmigrant worker visa program in order to protect U.S. workers.
 
What This Means for You
 
Immigration attorneys and employers of foreign workers have already witnessed a marked increase in the number of requests for evidence (RFEs) in routine H-1B filings since the Trump Administration took office in January of this year. Reuters has also reported recently that there were 85,000 H-1B RFEs issued between January and August, marking a 45% increase compared to the same period last year. (Incidentally, statistical data released by the USCIS also reveals an increase in RFE issuance for L-1B filings as well, showing a 33% increase in the rate of RFE issuance since January 2017). Many of these RFEs reflect interpretations of the law that are inconsistent with USCIS’ earlier policies, and seem to also reflect a much higher burden of proof than called for in the USCIS regulations. In light of these changes and in order to minimize the risk of RFE delays, we may in some cases ask our clients to provide evidence that was not required to secure approval of the previous filing, when preparing an extension of stay petition. To allow our clients more time to provide this evidence, we will also be initiating the extension process 8 months prior to expiration of the previously approved petition (note that the earliest that an extension may be filed is six months prior to expiration).

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