USCIS Eliminates Deference to Prior Nonimmigrant Adjudications in Extension Petition Filings

Dallas immigration lawyers – Rabinowitz & Rabinowitz, P.C.

Dallas, TX (Law Firm Newswire) December 27, 2017 – U.S. Citizenship and Immigration Services (USCIS) announced an update to a policy guidance in late October, 2017, which rescinded a 2004 USCIS policy that directed adjudicators to defer to prior determinations of eligibility when processing petition extensions for certain nonimmigrant visa categories. USCIS has instructed its adjudicating officers to use the same scrutiny in extension petitions as it now uses in deciding initial petitions.

“Taken together with the president’s April 18, 2017 ‘Buy American, Hire American’ Executive Order, USCIS has given its adjudicators a green light to find reasons to object to an extension petition approval, as a not so subtle way of making an extension approval harder to obtain,” said Stewart Rabinowitz, an immigration attorney with the Dallas law firm of Rabinowitz & Rabinowitz, P.C. “If the goal is attrition in nonimmigrant visa petition filings by making them overly complicated, by causing additional delay and by involving additional expense, none of those actions will produce any more U.S. workers. Instead these factors will harm the U.S. economy by discouraging U.S. employers from seeking to employ a small but highly talented pool of skilled foreign workers who fill the gap between supply and demand in many high tech and other areas.”

Under the previous policy, if there was a prior approved petition with no evidence of fraud or material error, and key elements remained unchanged, then USCIS instructed its officers to give deference to the prior findings. USCIS said that the problem with this policy was that it appeared to shift the burden of proof to USCIS to review the prior proceeding, instead of placing the burden of establishing eligibility on the petitioner. The previous policy may also have limited the ability of adjudicators to thoroughly review the facts in each case, because deference was viewed as the default position, USCIS said.

The updated policy guidance states that the fact-finding authority of an adjudicator should be based on the merits of an individual case, and should not be constrained by a previous petition approval. USCIS said that the updated guidance would protect the interests of U.S. workers.

“While in some small number of cases, a re-adjudication may be warranted, employers should be able to rely on the approval of a prior petition when filing a near identical extension petition. Employers presume that USCIS officers did their job diligently and correctly in the first instance, whereas the new non-deference policy assumes that some hidden error will go uncorrected if only USCIS adjudicators will look harder to find it” said Rabinowitz. “U.S. employers facing talent shortages are willing to invest in significant government filing fees and other fees for skilled and needed foreign workers and would readily hire U.S. workers without this added expenses were they available.”