USCIS Issues Policy Memorandum Rescinding Prior Guidance Directing That Deference Be Given To Prior Visa Approvals

What's Happening

This week United States Citizenship and Immigration Service (USCIS) issued a Policy Memorandum titled “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” which rescinds prior USCIS policy guidance permitting USCIS adjudicators to give deference to certain previously approved nonimmigrant visa petitions where the material facts underlying the petition remained unchanged. This policy had been in place since 2004 and was reaffirmed by USCIS in 2015.

Under the now-rescinded policy, USCIS officers were instructed to give deference to previous visa approvals when adjudicating extension requests, where there was (1) no substantial change in circumstances that impacted the beneficiary's eligibility for the nonimmigrant classification; (2) the prior approval was not due to a material error in granting the previous approval; and (3) there was no new information that would adversely impact the beneficiary's eligibility for the nonimmigrant status.  

In a statement on USCIS’s website accompanying the issuance of the new Memo, newly appointed USCIS Director L. Francis Cissna explained, “This updated guidance provides clear direction to help advance policies that protect the interests of U.S. workers,” a statement which is understood to be a reference to the April 18th “Buy American, Hire American” Executive Order (BAHA) focussed on the protection of U.S. jobs and directing the Department of Homeland Security (DHS) to implement measures to ensure that nonimmigrant work visas go to the most skilled or highest-paid foreign nationals.

Who this Impacts

This policy change applies to all Form I-129-based requests for extensions of stay (including H-1B, L-1, O, TN, and P petitions). These extension requests will no longer be given deference based on the fact that a prior petition was approved by USCIS, even when the facts remain unchanged.  While the Memo acknowledges that adjudicating officers may still reach the same conclusion as in the initial petition, under this new policy they are no longer “compelled to do so as a default starting point.” As a result, the new Memo provides USCIS adjudicators with even more discretion to deny extension requests  in cases where they disagree with the prior adjudicator’s approval of the prior petition or where they feel that a previously approved petition no longer complies with the current administration’s priorities (including the “Buy American, Hire American” executive order), even if the underlying facts of the case remain unchanged.  

In issuing the Policy Memo, USCIS indicated that the prior guidance improperly placed the burden onto USCIS to determine that the facts/underlying circumstances of the prior petition approval remained the same, and that this was resulting in increased workloads and processing delays. It is worth noting that the regulations governing extension filings for certain employment-based visas do not require any supporting documents to be submitted as initial evidence when filed on behalf of same beneficiary without change in the underlying factual circumstances. While the Memo acknowledges this fact, the new guidance instructs USCIS adjudicators not to feel constrained in issuing Requests for Evidence (RFEs) for additional supporting documentation in these cases.

Things to Keep in Mind

The new policy directs USCIS officers to apply the same level of review to both initial petitions and extension requests.Petitioners should, therefore, plan to file extension requests with all relevant supporting documents. Such a shift in the standard of review for extensions is expected to result in longer processing times and USCIS is expected to issue additional RFEs to reassess eligibility.  As a result, where cases are not filed with a request for Premium Processing service, employers will need to closely monitor the beneficiary’s work authorization while their extension is pending as protracted processing may increase the likelihood of a disruption to employment authorization and, thus, may necessitate premium processing upgrades (where available) for some beneficiaries.

The memo is expected to result in more unpredictability and tougher scrutiny as the agency develops new interpretations of nonimmigrant eligibility criteria that take into account the directives laid out in the “Buy American, Hire American” executive order.  As a result, immigration attorneys should be prepared to include arguments that specifically address BAHA in addition to arguing that because the legal standards for nonimmigrant visa eligibility have not changed a well-documented petition should be approved even without deference.

D&S will continue to monitor this developing situation and provide updates as more adjudication data becomes available.