USCIS Rescinds Extension Rule Giving Deference to Prior Nonimmigrant Petitions

On October 23, 2017, U.S. Citizenship and Immigration Services (USCIS) published a new Policy Memorandum, rescinding a former memo from April 23, 2004, which instructed adjudication officers to defer to an original petition’s finding of eligibility when reviewing requests for extension of already approved nonimmigrant status, unless significant material changes in circumstances had arisen since the original petition was approved. Based on the 2004 memo, extensions of H-1B or L-1B petitions have been granted readily and with minimal requirements for additional documentation.

The new memo instructs adjudication officers to review each petition for extension of nonimmigrant status as if it were an entirely new petition, subjecting it to the level of scrutiny applied to an initial petition. While the memo acknowledges that, under U.S. regulations, the evidence required for extension of nonimmigrant status is less than that required for an initial petition, it asserts USCIS’ discretionary authority to request additional evidence, and instructs adjudicating officers to exercise that authority without constraint when reviewing extension of status petitions.

Recent months have seen a sharp increase in the number of requests for evidence made by USCIS in connection with new nonimmigrant petitions, resulting in delays in approving petitions. Under the new policy governing extension petitions, it is likely that they, too, will now see an increase in requests for evidence and resultant delays.

A further possible implication results from the fact that the new rule applies retroactively to all petitions, past as well as future. This creates the opportunity for adjudicating officers to apply to extension of status petitions new rules that did not exist at the time that the original petition was approved. Under such a scenario, USCIS could conceivably deny a request for extension of status for a petition that has fully complied with the rules in place at the time of approval, and without material change in circumstances, if it fails to satisfy a subsequently adopted rule.

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