USCIS Changes Policy On The Adjudication Of Petitions For Extension Of Nonimmigrant Status

On October 23, 2017, USCIS released a policy memo updating the guidelines for adjudicating the extension of nonimmigrant visas. The memo rescinded a previous 2004 memo entitled, “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding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.”

The 2004 memo directed adjudicators to defer to prior determination of eligibility when adjudicating petition extensions involving the same parties. The new memo advises adjudicators to thoroughly review the petition and supporting evidence to determine the eligibility for extension without defaulting to the previous judgement.

USCIS has done this because they said the 2004 memo improperly placed the burden of proof on USCIS to obtain and review information to see if the beneficiary qualified for extension. The 2004 memo was also deemed, “costly to properly implement, especially when adjudicating premium processing requests.”

USCIS argues that the adjudicators’ inherent fact-finding authority was limited in certain cases under the 2004 policy although they retained the ability to review prior adjudicative decisions and deny certain requests for extensions of status. They stated, “An adjudicator’s fact-finding authority, as was the case prior to April 23, 2004, should not be constrained by any prior petition approval, but instead, should be based on the merits of each case.”

The repercussions of this policy overhaul are extensive. Approved beneficiaries of employment-based visas who apply for extension under the same conditions with the same employer could be denied. In addition, increased scrutiny could lead to delays when the underlying facts have not changed.

The 2004 policy has been rescinded as a part of the Trump Administration’s Buy American, Hire American: Putting American Workers First initiative. This new guidance will impact extensions of nonimmigrant status that use the I-129 Form and will likely result in the issuance of more Request for Evidence (RFE) notifications.