Since 2004, the U.S. Citizenship & Immigration Services (USCIS) has adhered to a policy of deferring to prior determinations when adjudicating petitions for extensions of nonimmigrant status. Its memorandum of October 23, 2017 indicates that this policy will change.
The USCIS memorandum released this week and titled “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status,” rolls back policy the agency has adhered to, and employers have relied on, since 2004. Specifically, the USCIS memorandums of April 23, 2004, “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” and of August 17, 2015, “L-1B Adjudications Policy” – directed officers to give deference to prior USCIS determinations of eligibility when adjudicating extension of stay petitions. The current memorandum reiterates that the burden of proof for establishing the eligibility of both the sponsored position and employee remains with the petitioner and that the agency will thoroughly review each petition and its supporting evidence as a new petition to determine eligibility for the benefit sought, believing this to be more consistent with the agency’s current priorities and advancing policies that protect the interests of U.S. workers.
When filing extension petitions for employees, employers will want to make clear that their sponsored positions and sponsored employees meet all relevant requirements for their visa category—even in cases in which there has been little change from the initial petition filing.