No Deference by USCIS to Prior Employment-Based Petition Approvals

On October 23rd, USCIS released a memorandum overturning previous policy on deference of eligibility in the adjudication of petitions for extension of nonimmigrant status. This new memo will affect most non-immigrant workers, as extensions of visas are quite common. The memo comes in response to the Executive order, “Buy American Hire American,” which has impacted other immigration policies. The goal of the policy memorandum is to “protect the interests of U.S. workers.”

Previous Policy

On April 23, 2004 USCIS released a memorandum that directed adjudicators of nonimmigrant extension petitions to defer to prior decisions of eligibility given in the original petition. For extensions, UCIS adjudicators had the burden of reviewing previous evidence of eligibility. The adjudicator had to only determine that the current facts of the case remained the same. The memo prohibited deference for “limited circumstances.” Additionally in August of 2015, USCIS released a second direction to adjudicators, allowing deference of original eligibility in L-1B cases.

New Policy

The memo returns assessment of extensions of non-immigration status to adjudication procedures prior to April 23, 2004. Therefore, adjudicators will no longer defer to previous eligibility assessments while reviewing extension petitions. Each extension is a new petition under the new procedure, and adjudicators will not rely on previous approvals. The burden of proof will be placed upon the petitioner to provide adequate evidence for eligibility. The adjudicators are not limited by previous eligibility decisions, and therefore may request additional documentation for the purpose of determining eligibility. USCIS states that the process will aid in “discovering material errors in prior adjudications.” USCIS complained that the deference procedure limited adjudicators from discovering errors in evidence or filing mistakes made in previous petitions.

Impact

Since the processing time of a nonimmigrant worker extension has increased, employers should expect greater delays. The new memo reduces efficiency, and will place a greater burden on employers of non-immigrant workers. If you have any questions about your petition of extensions for nonimmigrant work status, please feel free to contact our office.