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USCIS Issues Policy Memo: No Longer Giving Deference to Previous NIV Approvals

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USCIS Issues Policy Memo: No Longer Giving Deference to Previous NIV Approvals

October 24, 2017

The USCIS has issued a Policy Memorandum which states it will no longer give deference to previously-approved nonimmigrant visa petitions when adjudicating requests for extensions and, presumably, change of employer requests.  This applies to H-1B, L-1 and other nonimmigrant categories.

This memorandum rescinds a previous USCIS policy which instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination.

The USCIS states that “adjudicators must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The updated guidance instructs officers to apply the same level of scrutiny when reviewing nonimmigrant visa extension requests even where the petitioner, beneficiary and underlying facts are unchanged from a previously approved petition. While adjudicators may ultimately reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point as the burden of proof to establish eligibility for an immigration benefit always lies with the petitioner.”

Since President Trump issued the Buy American, Hire American Executive Order, employers have received increasing numbers of USCIS Requests for Evidence (RFE) and applicants for visa stamps and entry to the U.S. have encountered unprecedented scrutiny.  This new Policy Memorandum will likely further the trend of more frequent RFEs. 

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