On Monday, October 23, 2017, U.S. Citizenship and Immigration Services (CIS) announced the rescission of previous agency guidance that accorded deference to prior CIS approval decisions during the adjudication of petitions seeking an extension of stay in the same nonimmigrant status.
Under the prior “deference memorandum,” CIS adjudicators were instructed to defer in most cases to the prior decision approving the original petition in any petition filed to request an extension of status in the same status for employment in the same position with the same employer. Exceptions were made for cases where there was a substantial change in circumstances or a material error in the original petition approval, or where new material information adversely impacts eligibility.
The CIS rescinded the “deference memorandum” because the agency believed it “had the unintended consequence of officers not discovering material errors in prior adjudications.” When rescinding the prior guidance, the CIS reiterated, “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.”
The burden of proof in any petition or application for immigration benefits is on the employer or person filing the petition or application. Eligibility for the benefit must be demonstrated by a “preponderance of evidence.” This standard requires the petitioner or applicant to demonstrate that each required element of the case is more likely than not to be true, although it often seems that CIS adjudicators apply a stricter standard. Petitioners and applicants should be prepared to document each and every element of the case each time a petition or application is filed, even in cases of renewal or extension.
Foster LLP will continue to monitor changes in adjudication standards and guidance and will provide additional information as appropriate via future Immigration Updates© and on our firm’s website at www.fosterglobal.com.