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USCIS No Longer Deferring to Initial Applications When Adjudicating Renewals for Non-Immigrant Visas

The new Policy Memorandum titled Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status, directly affects the way that USCIS personnel will be adjudicating immigrant applications and petitions. The prior Memorandum that was announced in April 2004 directed adjudicators to acknowledge previous eligibility standards when adjudicating a petition extension of the same party. This new adjudication process was enforced indefinitely exempting instances of rare circumstances.

In August 2015, a policy Memorandum was published to recognize prior eligibility standards within the integral process of approval of L-1B petitions. These previous policies were rescinded on October 23, 2017 and will require USCIS to intensively review petitions without being compelled to take an extra step in the petition processing. The time and cost that was affiliated with accessing extra records that may have possibly contained similar information can now be avoided.

Corresponding with the previous Memorandum, the proof of eligibility of the sponsored position and employee will solely be placed on the petitioner to further assess the suitability of the petition. In the new policy, the adjudicator will be able to fully assess the new petition without any prior constraints that were present on old petitions. This allows adjudicators to approve and deny petitions as they deem fit and not rely on previous approvals to dictate their decisions. The merit of each case will now be the predominant factor to adjudicating petitions.

According to the Policy Memorandum, adjudicators “should not feel constrained in requesting additional documentation in the course of adjudication a petition extension, consistent with USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits.” USCIS recognizes that petitions filed with the same party may not always require supplementary evidence, although they are still permitted to ask for it. Rescinding the prior policy Memorandums is said to be more consistent with USCIS’s policy and will aid US workers in a significant way.

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