No More Deference: How USCIS Will Review Requests for Extensions

In its latest round of updates, on October 23, 2017, USCIS issued a policy memorandum (PM-602-0151) which addresses how officers should review nonimmigrant petitions at the time of extension. Moving forward, USCIS will adjudicate all extension petitions at the same level of review it does for initial petitions for nonimmigrant categories such as H, P, and L, among others.

What this means is that USCIS will no longer defer or rely on evidence in a previously approved petition when deciding whether to grant an extension.

What does this mean for employers? Employers should be ready to provide the same level (if not more) documentation when it is time to extend their worker’s visa. Employers may no longer rely on previously submitted evidence but should provide all evidence that is required for the worker to be eligible for the visa at the time of extension.

Why is this important? USCIS continues to update or rescind prior policy memorandum that affect nonimmigrant visa categories. Memos provide guidance to officers when they adjudicate visa petitions. Understanding how USCIS will review is critical to petition preparation and to mitigate the chances of obtaining a Request For Evidence (RFE).

For example, the L-1B visa category permits multinational companies to transfer their foreign national workers who possess special or advanced knowledge of their tools, methodologies, systems, and processes to their operations in the U.S. The L-1B category is a useful tool for employers who need to transfer a foreign national to a U.S. branch, affiliate, subsidiary, or parent for a temporary time. However, the L-1B petition already faces heightened scrutiny because of USCIS’ mandate to define this category of workers very narrowly. RFE and denial rates are high for this category. Therefore, documentation and evidence of your employee’s specialized knowledge has always been the key to a successful initial approval. It will now be expected at every extension.
How to Prepare for The Next Extension Filing.

We recommend planning ahead with an immigration practitioner about the requisite evidence required at the time of filing in order to meet the qualifications of your nonimmigrant visa category—whether it is initial, an amendment, or at the time of extension. Employers should be prepared to submit additional evidence at the time of filing or at the time of an Request For Evidence (RFE). Please contact us for checklists or to discuss the documentation required for your filing.

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Resource:
USCIS Statement: https://www.uscis.gov/news/news-releases/uscis-updates-policy-ensure-petitioners-meet-burden-proof-nonimmigrant-worker-extension-petitions