On October 23, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) rescinded policy guidelines in effect since April 2004 regarding requests for the extension of certain nonimmigrant visas (i.e., visa petitions filed using Form I-129). Previously, an adjudicator’s determination that a non-U.S. citizen met the eligibility requirements for granting a nonimmigrant visa was given deference in subsequent requests for a visa extension where the parties (petitioner and beneficiary) and the underlying facts and circumstances remained the same. The new policy guidelines now eliminate this deferential policy, requiring an adjudicator to review any request for a nonimmigrant visa extension the same as the review of the initial petition. In essence, a new adjudicator may question another adjudicator's prior approval of the nonimmigrant petition, even if there is no material change in the underlying facts.

USCIS’s new guidelines apply to nearly all nonimmigrant classifications filed using Form I-129, “Petition for a Nonimmigrant Worker.”

The USCIS explained that the previous policy improperly shifted the burden of establishing eligibility from the petitioner to the agency, and “unduly limited” an adjudicator’s fact-finding authority. The new policy guidelines emphasize the “inherent” authority of the agency to request additional evidence in determining visa eligibility, even in instances where there is no evidence of material error or fraud related to the prior determination.

Employers should review the expiration date for employees who hold nonimmigrant visas filed using Form I-129 and remind such holders that an extension request may take longer—or denied altogether—under the new policy. If an extension of a nonimmigrant visa is denied, it will be unlawful for employers to continue employing the former visa-holder after the expiration of the current visa status, and therefore should terminate their employment.