Rescission of Deference to Prior Decisions Granting Certain Nonimmigrant Visa Status

Oct 26, 2017

On October 23, 2017, U.S. Citizenship and Immigration Services (“USCIS”) issued updated policy guidance directing its officers to “apply the same level of scrutiny to both initial petitions and extension requests for certain nonimmigrant visa categories.” Previous policy had instructed officers to give deference to the findings of previously approved petitions, as long as there was no evidence of fraud or material error related to the prior determination and the key elements remained the same. The updated guidance removes this language. In its policy memorandum, USCIS notes that the previous policy “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,” thereby “improperly shift[ing] the burden of proof to the agency.” USCIS clarifies that “the burden of proof remains on the petitioner even where an extension of nonimmigrant status is sought” and directs officers to “thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought.”

Following this change in policy, employers should expect heightened scrutiny and an increase in Requests for Evidence on I-129s, Petitions for Nonimmigrant Workers, seeking extensions of H 1B, L-1A, L-1B, O-1, TN, and other employment-based nonimmigrant statuses. A copy of USCIS’s announcement and policy memorandum can be found here.

Mollie E. Hennessee practices primarily in the areas of school, higher education, labor and employment, and immigration law. She represents school districts throughout Missouri with respect to employment and termination matters, student discipline and student rights, and civil rights. Mollie also represents colleges and universities and private employers in employment and immigration matters. Prior to joining the Firm, Mollie worked for the Department of Homeland Security’s Immigration and Customs Enforcement as an Assistant Chief Counsel, representing the federal government in deportation proceedings. While in law school, Mollie served as an intern for the Honorable Catherine D. Perry of the United States District Court in Eastern Missouri.

Immigration – The firm represent businesses, institutions of higher learning, and individuals with respect to immigration-related matters, including obtaining visitor visas, temporary and permanent work visas, consular processing of visas, obtaining citizenship, advising employers on employment sanctions issues, and defending employers faced with INS I-9 audits and investigations.