UPDATE APRIL 29, 2021: On April 27, 2021, USCIS issued updated guidance in the USCIS Policy Manual effective immediately instructing officers to once again give deference to prior determinations when adjudicating extension of petition validity requests “involving the same parties and facts unless there was a material error, material change, or new material facts.” In doing so, “USCIS is reverting in substance to previous long-standing guidance issued in 2004”, which had been rescinded in 2017 (as discussed in this post).
For over a decade, filing an extension of nonimmigrant status has been fairly routine in most cases. On Monday, October 23, 2017, US Citizenship & Immigration Services (USCIS) issued a new policy memorandum that instructs its officers to apply the “same level of scrutiny to both initial petitions and extension requests for certain nonimmigrant visa categories.”
Effective the same day the memo was issued, October 23, 2017, the guidance applies to nearly all nonimmigrant classifications filed using Form I-129, Petition for a Nonimmigrant Worker. “USCIS officers are at the front lines of the administration’s efforts to enhance the integrity of the immigration system,” USCIS Director L. Francis Cissna says in the press release. “This updated guidance provides clear direction to help advance policies that protect the interests of U.S. workers.”
The new policy memo supersedes and rescinds the April 23, 2004 memorandum titled, “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity,” as well as section VII of the August 17, 2015 policy memo titled “L-1B Adjudications Policy,” both of which instructed adjudicators when reviewing extension of stay petitions to give deference to previously approved petitions, assuming the key elements were the same and there were no significant errors or evidence of fraud. The new policy states: “In adjudicating petitions for immigration benefits, including nonimmigrant 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 notes that while officers may come to the same decision as they did previously, they are not compelled to do so as a default starting point.
While USCIS acknowledges that the regulations themselves allow for petitioners to submit minimal supporting documentation when seeking an extension of stay with the same material facts, the memo nonetheless suggests “[w]hile adjudicators should be aware of these regulatory provisions, they should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension.” In other words, the memo basically suggests officers should ignore the immigration regulations and ask for the evidence in a Request for Evidence! The memo claims that the policy of deference to a previous approval may have “had the effect of limiting the ability of adjudicators to conduct a thorough review of the facts and assessment of eligibility in each case” and that it may have “had the unintended consequence of officers not discovering material errors in prior adjudications.”
This is a dramatic turnaround by USCIS on these kinds of extension cases, but what does this all mean in practice for foreign nationals and employers applying for an extension of current visa petitions? It means that all petitions, whether they are extensions or new petitions, will be treated as new applications with adjudicators closely scrutinizing all aspects of the filing. This in turn could lead to more requests for evidence on even the most straightforward extension of stay with the same sponsor even if the regulations state that the evidence is not required. What used to be routine applications will now be examined without deference to any prior approval or approvals. Immigration attorneys will likely need more time to prepare the filing and, therefore, petitioners should start the extension process as early as possible. This is yet another strange about-turn on the part of USCIS, like necessitating interviews for all employment-based Green Cards or confusing the seniority of an H-1B position with its complexity, that will add delays and create an untenable workload for an already overworked USCIS staff.