October 14, 2019

October 14, 2019

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USCIS Formalizes Policy on Lack of Deference to Previously Approved Petitions

All I-129 petitions, whether initial requests or requests for extension of visa status, will be subject to the same level of scrutiny, USCIS has confirmed. The agency will no longer defer to the findings of a previously approved petition even when the key elements of the petition have remained unchanged. This will affect most nonimmigrant workers in the U.S.

This is another policy change following President Donald Trump’s “Buy American, Hire American” Executive Order.

Each case will be reviewed on its own merits and the burden of proof in establishing eligibility will remain, at all times, with the petitioner. Employers filing requests for extension for their employees cannot assume that if the petition was previously approved, it will be approved again. This will heighten the anxiety that employers and foreign national employees are already feeling due to the Administration’s stance on foreign national employees and the protection of U.S. workers.

The USCIS policy regarding “deference” has been in effect since it was set out in a 2004 policy memorandum.  In a separate 2015 policy memo regarding L-1B adjudication, USCIS reiterated its deference policy with regard to L-1B extensions.  Both the 2004 memo and the section of the 2015 memo regarding deference now have been rescinded.

The official rescission of the deference policy comes as no surprise. Immigration attorneys and employers have seen heightened scrutiny in the form of numerous Requests for Evidence (RFEs) from USCIS seeking further documents and information in order to approve extension requests. At first, such RFEs appeared to affect primarily H-1B cap cases, but it then became clear to practitioners and petitioners that extensions also were being subject to RFEs at an increased rate. USCIS’ latest policy memorandum simply formalizes what had become the apparent policy.

Jackson Lewis P.C. © 2019


About this Author

Forrest G. Read IV, Immigration, Employment, Attorney, Jackson Lewis, Law Firm

Forrest Read is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has special expertise in legal issues in graduate medical education (GME).

Mr. Read's immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and...