On October 23, 2017, USCIS issued a Policy Memorandum rescinding previous guidance that directed adjudicators to defer to prior determinations of eligibility when adjudicating petitions for extension of nonimmigrant status.
By way of background, on April 23, 2004, USCIS issued a 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". This previous memorandum directed adjudicators, when adjudicating petition extensions involving the same parties and underlying facts as the initial petition, to defer to prior determinations of eligibility, except in certain, limited circumstances. These circumstances included where: (1) there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there is new material information that adversely impacts the petitioner's or beneficiary's eligibility.
The Memorandum issued yesterday rescinds the policy outlined above, and purports to provide updated guidance that is both more consistent with the agency's current priorities (for example, the Administration's "Buy American, Hire American" Executive Order) and also supposedly advances policies that protect the interests of U.S. workers. Specifically, the Policy Memorandum emphasizes that USCIS adjudicator's fact-finding authority should not be constrained by any prior petition approval, but instead should be based on the merits of each case. The Policy Memorandum further directs that adjudicators "should not feel constrained in requesting additional documentation in the course of adjudication a petition extension, consistent with USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits."
Unfortunately, the effect of this Policy Memorandum will likely be that petitions for extension of nonimmigrant status will start to experience a higher rate of Requests for Evidence. Further, the rescission of the policy to defer to previous approvals could result in elongated processing times for petitions for extensions of nonimmigrant status.
The Memorandum, titled "Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status", is binding on all USCIS employees and is effective immediately. For further guidance and insight, we encourage you to speak with an attorney on how best to approach an extension of status petition. As always, Green and Spiegel will continue to monitor how this guidance takes effect.
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