U.S. Alert – USCIS Updates Policy on Burden of Proof for Extension Petitions

NEW POLICY: USCIS Updates Policy on Burden of Proof for Extension Petitions

By:  Attorney Melissa Winkler

On April 18, 2017, President Trump signed the Buy American and Hire American Executive Order. Subsequently, USCIS started working on rulemaking, policy memoranda, and operational changes to implement the Executive Order. As part of the USCIS initiatives, on October 23, 2017, United States Citizenship and Immigration Services (USCIS) updated policy guidance updating the agency policy on burden of proof for extension petitions.

Background on Former Adjudication of Extension Petitions

On April 23, 2004, USCIS issued a memorandum titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity.” This memorandum directed adjudicators when adjudicating petition extensions involving the same parties and underlying facts as the initial petition to defer to the prior determination. Further, on August 17, 2015, USCIS issued a policy memorandum titled “L-1B Adjudications Policy” which directed USCIS adjudicators, in the context of L-1B petition extensions, to give deference to the prior determinations

October 2017 Memorandum Rescinding Deference to Extension Petitions

The October 23rd USCIS memorandum rescinded the former USCIS policy which required officers to defer to prior determinations in extension petitions. USCIS indicated that when adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, “thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought.” The burden of proof in establishing eligibility is, at all times, on the petitioner. USCIS also stated that the issue with 2004 memorandum is that it appeared to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same. USCIS found that the outdated policy may have precluded the adjudicator’s ability to conduct a thorough review of the case and may have missed material errors in the prior adjudication.

Requests for Evidence on Extension Petitions

USCIS indicated that they may still request additional evidence in extension cases. The memo stats officers “should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension, consistent with existing USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits.” As such, employers and immigration practitioners should be prepared to receive an increase in requests for evidence on petitions for an extension of status.

Conclusion

While adjudicators may reach the same conclusion as in a prior decision, they are not compelled to do so. This is in line with the current administration priorities and USCIS initiatives to place a higher level of scrutiny on immigration petitions to avoid fraud and abuse.