Wednesday, October 25, 2017

USCIS Updates Policy Regarding Nonimmigrant Extension Petitions

On Monday, October 23, 2017, USCIS rescinded a long-standing policy, which previously instructed officers to give deference to findings of previously approved nonimmigrant petitions, as long as the key elements of the petition remained unchanged, and there was no evidence of a material error or fraud related to the prior determination. 

The updated USCIS Policy Memorandum, in contrast, rescinds prior guidance and now instructs officers to apply the same level of scrutiny to extension requests as they do to initial petitions. Even in cases where the petitioner, beneficiary and underlying facts are unchanged from a previously approved petition, the updated guidance instructs officers to make a determination based on the merits of each case, and officers may request additional evidence if the petitioner has not submitted sufficient evidence to establish eligibility. 

This guidance applies to nearly all nonimmigrant classifications filed using Form I-129, Petition for a Nonimmigrant Worker.

This policy update will result in increased scrutiny and issuance of Requests for Evidence (“RFE”), resulting in longer processing times. Employers can no longer rely on swift approvals of extension petitions based on deference to prior case approvals. Looking ahead, with each I-129 petition being filed with USCIS, we advise employers to prepare extension applications with the same documentation provided in an initial petition seeking to demonstrate that the beneficiary meets USCIS eligibility requirements, even after previous approvals. The effects of this update have yet to be observed, and we will do our utmost to keep our clients apprised of any new developments.   

For specific questions pertaining to your personal situation please contact the SIL attorney with whom you have been working.  

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