Executive Summary
The situation
U.S. Citizenship and Immigration Services (USCIS) has rescinded a longstanding policy that required adjudicators to give deference to the agency’s previous determinations of eligibility when reviewing an application for a nonimmigrant extension of status.
USCIS is taking the position that adjudicators are no longer bound by past petition approvals when reviewing an H-1B, L-1 or other nonimmigrant extension request. Officers have been given broader authority to readjudicate a foreign beneficiary’s eligibility for a nonimmigrant classification each time an extension request is filed – even in cases where there has been no change in facts since the initial petition was approved.
What has changed
Under prior policy, officers were required to give deference to past approvals unless there was a substantial change in circumstances that affected the beneficiary’s eligibility for the nonimmigrant classification, the agency made a material error in the previous approval, or where new information adversely affected a beneficiary’s eligibility for the nonimmigrant status. That guidance, in place since 2004 and reaffirmed for L-1B petitions in 2015, has now been rescinded.
Looking ahead
Employers should be prepared for the consequences of the agency’s new policy:
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.