USCIS Changes Deference Policy – Raises the Standard for Visa Extension Approvals

The US Citizenship and Immigration Services (USCIS) issued a new binding memo on October 23rd rescinding earlier policy that required officers to give deference to prior decisions, in processing nonimmigrant visa extension applications.  This new policy affects all employment extension petitions (I-129), including H-1B, L-1, O-1 and more.

The new memo emphasized that the burden of proof for showing eligibility rests with the petitioner.  Prior to this, officers were directed to give deference to prior decisions when adjudicating visa extension requests which had the same material facts and same parties as the initial visa petition.  Now, the USCIS officers will no longer give regard or deference to prior decisions of eligibility while deciding whether to grant an extension of the visa; and will have to independently assess the petition and supporting evidence without being influenced by the prior approval decision.

Going forward, I-129 petition extensions will likely face increased scrutiny during the adjudication process.   Employers should treat each extension petition as a standalone petition and be sure to include complete documentation and all material facts irrespective of the prior approval decision.  With the USCIS officers now being instructed not to give deference to prior favorable decisions, it is essential that employers put their best case forward. 

What remains to be seen is whether the USCIS will use the new policy to re-adjudicate the initial visa petition and address any material error or fraud, while processing subsequent extension requests – which at the moment, seems quite unlikely.

Zeenat Phophalia, Esq., Senior Associate

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