Reversing longstanding policy, USCIS raises burden of proof for visa extensions

U.S. Citizenship and Immigration Services issued a binding policy memorandum Monday, rescinding a longstanding policy on the burden of proof when nonimmigrants seek an extension of their status. Under the new policy, officers will no longer give deference to the prior visa approval when deciding whether to grant an extension of the visa.

Key points: 

• The policy takes effect immediately and affects those applying to extend their nonimmigrant visa status, including H, L, F and all other nonimmigrant categories.
• USCIS officers will no longer give deference to prior determinations of eligibility when deciding whether to grant an extension of stay and are instructed to thoroughly review the petition and supporting evidence without being constrained by the prior approval decision.
• While the new policy does not change regulations on the documentary requirements of an extension application, it directs officers that “they should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension.”

Background:

Under an April 23, 2004, USCIS guidance, officers were instructed to defer to the prior determination of eligibility made in the initial petition when deciding whether to grant an extension of stay that involved the same parties and the same underlying facts. Similarly, an Aug. 17, 2015, guidance instructed officers to defer to a prior L visa determination of eligibility when adjudicating L visa extension requests.

The new policy revokes and supersedes the 2004 guidance and Section VII of the 2015 guidance. According to the policy memorandum, the earlier guidances improperly shifted the burden to the agency to determine whether the underlying facts remained the same and the guidances were “impractical and costly to properly implement,” particularly in 15-day expedited cases. Additionally, the memorandum states that the updated policy is “more consistent with the agency’s current priorities and also advances policies that protect the interests of U.S. workers.”

BAL Analysis: Employers and individuals holding nonimmigrant status should expect greater scrutiny of extension requests and an increased likelihood of receiving requests for evidence and notices of intent to deny.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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