No USCIS Deference to Prior Petition Approvals for Nonimmigrants

On October 23, 2017, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum affecting most nonimmigrant workers. This new policy memorandum rescinds a 2004 policy memo and portions of a 2015 policy memo that gave deference to previously approved petitions. The new policy is partially based on President Trump’s “Buy American, Hire American” initiative.

Prior USCIS Policy Memoranda

On April 23, 2004, the USCIS issued a memorandum directing adjudicators to give deference to prior determinations when assessing petitions for extensions involving the same parties and facts as the initial petition. This policy was reiterated on August 17, 2015 when the USCIS released a policy memo stating that deference should be given to prior determinations of eligibility in the context of L1B petition extensions.

New Policy Memorandum Reverses Earlier Policy

The new policy memo retracts the previous requirement that the UCSIS give deference to prior determinations. Now, adjudicators are to review each extension filing anew and make a determination on its approvability, without taking into consideration prior approvals. In the new memo, the USCIS acknowledges that the regulations do not require certain evidence be submitted with extension requests, and states that adjudicators are not limited to requesting additional evidence only as required by regulation. In effect, petitioners need to treat extension requests as initial filings, and should now include all relevant evidence, even that which is beyond the scope of what is required by regulation.

The USCIS rationalizes the need for this new policy by noting that the previous requirement of deference interfered with adjudicators’ autonomy and shifted the burden of proof to the government rather than with the petitioner. The USCIS further explains that the previous policy required the adjudicators to locate and review the initial filing, which created an unreasonable burden and was particularly impractical when a case was being adjudicated under premium processing.

Conclusion

It is unfortunate that the USCIS is creating policy that inevitably will lead to less consistency and reliability for employers and their nonimmigrant workers. MurthyDotCom will continue to track the impact of this memo and provide updates, when warranted.

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