U.S. Citizenship Services Rescinds Former Deferential Policy Regarding Nonimmigrant Visa Petitions

October 31, 2017

U.S. Citizenship Services (USCIS) rescinded its long-honored policy guidelines that were instituted in April 2004, and were in effect until October 23, 2017 regarding giving deference to the adjudication of prior nonimmigrant petitions on behalf of new petition filings.

Previously, an adjudicator reviewing certain nonimmigrant visa petitions (i.e. petitions filed using Form I-129, including the H1-B, H1-B1, L-1, O-1, P-1, P-3 R-1, E-1 and E-2 visas) would give deference to previously adjudicated petitions in the case where parties (petitioner and beneficiary) and underlying facts and circumstances of the case remained the same. New policy guidelines, effective as of October 23, now remove this policy and guide adjudicators and examiners to review any requests for extensions of nonimmigrant petitions as if reviewing the case anew. This policy gives rise to the possibility that an adjudicator may overturn and reverse a previously granted petition, even if there is no change in the facts of a case.

Employers would be well advised to review expiration dates on all nonimmigrant petitions, file renewals and extensions of stay on a timely basis, or even early, with consideration to the fact that extensions are no longer automatic, and an uptick in denials are anticipated. Petition extension requests may be filed up to 180 days prior to expiration of the nonimmigrant’s stay in the United States. Consideration must also be given to the fact that if a petition extension request is denied, the employer may no longer employ the nonimmigrant worker and should terminate employment.

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