USCIS Updates Policy On Burden Of Proof For Extension Petitions
On April 18 2017 President Trump signed the “Buy American,
Hire American” executive order. Subsequently, US Citizenship
and Immigration Services (USCIS) started working on the necessary
rulemaking, policy memoranda and operational changes to implement
the executive order. As part of these initiatives, on October 23
2017 USCIS updated agency policy guidance on the burden of proof
for extension petitions.
Background on former adjudication of extension petitions
On April 23 2004 USCIS issued a memorandum entitled “The
Significance of a Prior CIS Approval of a Non-immigrant Petition in
the Context of a Subsequent Determination Regarding Eligibility for
Extension of Petition Validity”. This memorandum directed
adjudicators to defer to the prior determination when adjudicating
petition extensions involving the same parties and underlying facts
as the initial petition. Further, on August 17 2015 USCIS issued a
policy memorandum entitled “L-1B Adjudications Policy”
directing USCIS adjudicators to defer to the prior determinations
in the context of L-1B petition extensions.
October 2017 memorandum
The USCIS memorandum of October 23 rescinded the former USCIS
policy which required officers to defer to prior determinations in
extension petitions. USCIS indicated that when adjudicating
petitions for immigration benefits, including non-immigrant
petition extensions, adjudicators must “thoroughly review the
petition and supporting evidence to determine eligibility for the
benefit sought” in all cases. The burden of proof in
establishing eligibility is, at all times, on the petitioner. USCIS
also stated that the 2004 memorandum appeared to place the burden
on USCIS to obtain and review a separate record of proceeding in
order to assess whether the underlying facts in the present
proceeding had remained the same. USCIS found that the outdated
policy may have precluded the adjudicator’s ability to conduct
a thorough review of the case and may have missed material errors
in the prior adjudication.
Requests for evidence on extension petitions
USCIS indicated that it may still request additional evidence in
extension cases. The memorandum states that officers:
“should not feel constrained in requesting additional
documentation in the course of adjudicating a petition
extension, consistent with existing USCIS policy regarding
requests for evidence, notices of intent to deny, and the
adjudication of petitions for nonimmigrant benefits.”
As such, employers and immigration practitioners should be
prepared to receive an increase in requests for evidence on
petitions for an extension of status.
Comment
While adjudicators may reach the same conclusion as in a prior
decision, they are not compelled to do so. This is in line with the
administration priorities and USCIS initiatives to place a higher
level of scrutiny on immigration petitions in order to avoid fraud
and abuse.
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