On October 23, 2017, the United States Citizenship and Immigration Services (“USCIS”) announced that it will revise its policy regarding prior determinations for nonimmigrant petitions. According to its policy memorandum, USCIS will no longer defer to prior determinations of eligibility made in previous nonimmigrant petitions.  In short, this means that just because a petition was approved previously, it does not mean that a renewal or extension will be approved even if nothing has changed. Instead, the petitions will be reviewed again from scratch and something that was accepted in the past may be a reason for denial.  The rescission can impact whether an applicant should apply for a change of status or pursue consular processing and will almost certainly lead to more denials.

The Prior Rule: Deference to Prior USCIS determinations

In 2004, USCIS released a memorandum to clarify and streamline the adjudication process for certain nonimmigrant petitions. The memorandum noted that some “adjudicators have been questioning prior determinations where there is no material change in the underlying facts as a matter of routine.” Thus, the memorandum decreed that “in matters relating to an extension of nonimmigrant petition validity involving the same parties (petitioner and beneficiary) and the same underlying facts, a prior determination by an adjudicator that the alien is eligible for a particular nonimmigrant classification south should be given deference.” Put simply, a nonimmigrant applicant seeking to extend their status did not need to reprove certain elements of their case upon renewal, as the adjudicator would defer to the prior determination of eligibility.

The New Rule

According to the most recent policy memorandum, the deference policy outlined above “improperly shifted the burden of proof to [USCIS],” and increased the cost of adjudicating nonimmigrant petitions. (which is odd given that more time will have to be spent to review unchanged information that was already approved).  The new policy requires an adjudicator to thoroughly review the petition and supporting evidence for the benefit sought, without placing any weight on prior determinations.

How does this affect my nonimmigrant petition?

The policy shift can affect a nonimmigrant petition in a number of ways.  Initially, the policy shift requires an applicant (and his/her counsel) to reassess the benefits of a change of status filing versus filing an application with a consulate. For example, a petitioner seeking to extend their E-2 nonimmigrant classification with USCIS could reasonably assume that the agency would defer to its previous determination on certain aspects of his/her petition (such as the source and trail funds for example). Under the new policy, USICIS adjudicators are no longer permitted to defer to prior determinations and review the case in its entirety, even if some aspects of the petition, such as the initial E-2 investment and the source of funds for that investment, are exactly the same. This requires an applicant to resubmit documentary evidence that may previously be omitted or reduced from a renewal application. In certain cases, such as an E-2 or L-1 renewal, this could amount to thousands of pages. Under the new policy, applicants will be required to demonstrate each aspect of their petition, essentially submitting a new petition for the same nonimmigrant benefit, even if no material change has occurred in the case. Furthermore, petitioners must submit documentary evidence (in some cases thousands of pages worth) that previous USCIS renewals would not have required.

It is important that you discuss this policy change with your immigration attorney to determine whether this may affect your change of status petition. In some cases, this change may make applying at a consulate more attractive than applying for a change of status but it is unclear whether this policy shift will also extend to Consulates at some point.

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