On April 18 2017 President Trump signed the "Buy American, Hire American" executive order. Subsequently, US Citizenship and Immigration Services (USCIS) started working on the necessary rulemaking, policy memoranda and operational changes to implement the executive order. As part of these initiatives, on October 23 2017 USCIS updated agency policy guidance on the burden of proof for extension petitions.

Background on former adjudication of extension petitions

On April 23 2004 USCIS issued a memorandum entitled "The Significance of a Prior CIS Approval of a Non-immigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity". This memorandum directed adjudicators to defer to the prior determination when adjudicating petition extensions involving the same parties and underlying facts as the initial petition. Further, on August 17 2015 USCIS issued a policy memorandum entitled "L-1B Adjudications Policy" directing USCIS adjudicators to defer to the prior determinations in the context of L-1B petition extensions.

October 2017 memorandum

The USCIS memorandum of October 23 rescinded the former USCIS policy which required officers to defer to prior determinations in extension petitions. USCIS indicated that when adjudicating petitions for immigration benefits, including non-immigrant petition extensions, adjudicators must "thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought" in all cases. The burden of proof in establishing eligibility is, at all times, on the petitioner. USCIS also stated that the 2004 memorandum appeared to place the burden on USCIS to obtain and review a separate record of proceeding in order to assess whether the underlying facts in the present proceeding had remained the same. USCIS found that the outdated policy may have precluded the adjudicator's ability to conduct a thorough review of the case and may have missed material errors in the prior adjudication.

Requests for evidence on extension petitions

USCIS indicated that it may still request additional evidence in extension cases. The memorandum states that officers:

"should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension, consistent with existing USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits."

As such, employers and immigration practitioners should be prepared to receive an increase in requests for evidence on petitions for an extension of status.

Comment

While adjudicators may reach the same conclusion as in a prior decision, they are not compelled to do so. This is in line with the administration priorities and USCIS initiatives to place a higher level of scrutiny on immigration petitions in order to avoid fraud and abuse.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Melissa B Winkler at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (melissa@employmentimmigration.com). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.