On April 23, 2004, USCIS issued a memorandum titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity.” This memorandum directed adjudicators, when adjudicating petition extensions involving the same parties and underlying facts as the initial petition, to defer to prior determinations of eligibility, except in certain, limited circumstances.

On August 17, 2015, USCIS issued a policy memorandum titled “L-1B Adjudications Policy” which directed USCIS adjudicators, in the context of L-1B petition extensions, to give deference to the prior determinations of eligibility by USCIS, except in certain, limited circumstances.2 For the reasons detailed below, USCIS is rescinding the policy of requiring officers to defer to prior determinations in petitions for extension of nonimmigrant status as articulated in the above memoranda. USCIS is also providing updated guidance that is both more consistent with the agency’s current priorities and also advances policies that protect the interests of U.S. workers. In adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. Adjudicator’s Field Manual, Chapter 10.3(a). The burden of proof in establishing eligibility is, at all times, on the petitioner. INA § 291 The fundamental issue with the April 23, 2004 memorandum is that it appeared to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same. Not only did this improperly shift the burden of proof to the agency contrary to INA § 291, but it was also impractical and costly to properly implement, especially when adjudicating premium processing requests.

Accordingly, this memorandum makes it clear that the burden of proof remains on the petitioner, even where an extension of nonimmigrant status is sought. While the April 23, 2004 memorandum explicitly acknowledged that USCIS has the authority to review prior adjudicative decisions and deny certain requests for extensions of status, the memorandum unduly limited adjudicators’ inherent fact-finding authority in certain cases. An adjudicator’s fact-finding authority, as was the case prior to April 23, 2004, should not be constrained by any prior petition approval, but instead, should be based on the merits of each case. In this regard, USCIS acknowledges that the regulations in certain instances do not require supporting documents to be submitted as initial evidence when an employer files a petition extension without change on behalf of the same alien. See, e.g., 8 CFR §§ 214.2(h)(14), (l)(14)(i), (o)(11), and (p)(13). However, although these regulatory provisions govern what is required to be submitted at the time of filing the petition extension, they do not limit, and, in fact, reiterate, USCIS’ authority to request additional evidence. While adjudicators should be aware of these regulatory provisions, they 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.

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.