On April 18 2017 President Trump signed the “Buy American,

Hire American” executive order. Subsequently, US Citizenship

and Immigration Services (USCIS) started working on the necessary

rulemaking, policy memoranda and operational changes to implement

the executive order. As part of these initiatives, on October 23

2017 USCIS updated agency policy guidance on the burden of proof

for extension petitions.

Background on former adjudication of extension petitions

On April 23 2004 USCIS issued a memorandum entitled “The

Significance of a Prior CIS Approval of a Non-immigrant Petition in

the Context of a Subsequent Determination Regarding Eligibility for

Extension of Petition Validity”. This memorandum directed

adjudicators to defer to the prior determination when adjudicating

petition extensions involving the same parties and underlying facts

as the initial petition. Further, on August 17 2015 USCIS issued a

policy memorandum entitled “L-1B Adjudications Policy”

directing USCIS adjudicators to defer to the prior determinations

in the context of L-1B petition extensions.

October 2017 memorandum

The USCIS memorandum of October 23 rescinded the former USCIS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 non-immigrant

petition extensions, adjudicators must “thoroughly review the

petition and supporting evidence to determine eligibility for the

benefit sought” in all cases. The burden of proof in

establishing eligibility is, at all times, on the petitioner. USCIS

also stated that the 2004 memorandum appeared to place the burden

on USCIS to obtain and review a separate record of proceeding in

order to assess whether the underlying facts in the present

proceeding had 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 USCIS found that the outdated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 it may still request additional evidence in

extension cases. The memorandum states that 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.

Comment

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

administration priorities and USCIS initiatives to place a higher

level of scrutiny on immigration petitions in order to avoid fraud

and abuse.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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