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Davis Brown Immigration Law Blog

September 2018 Immigration Analysis - Deference to Prior Determinations - September 24, 2018

This month, we are posting status updates on a few immigration policies that impact our clients. Last week, we covered the travel ban and changes to advance parole.  Today, we are looking at the rescission of deference to prior determinations. This series will continue with issues of denials, unlawful presence, and premium processing of H-1Bs. 

In October 2017, U.S. Citizenship & Immigration Service (USCIS) rescinded a policy enacted in 2004 that instructed examiners to defer to prior decisions when reviewing an application for extension of a nonimmigrant status (such as H-1B, L-1, etc.).  Although petitioners have always been required to prove eligibility, the prior instruction made extension petitions easier to file since many of the facts that had been established before did not need to be proved again.

For example, if the employer had established that a job was a “specialty occupation” for H-1B eligibility and the job had not changed, that proof was not required (or not as much proof was required) for an extension.  It gave the petitioner the benefit of the doubt when submitting a request for extension without change.  This policy made sense because employers and employees both need some certainty. 

The new guidance rescinded this policy, meaning that even if the job, the nature of the employer, the education and qualification of the employee, or any other aspect of eligibility has not changed, these facts must again be documented.

This guidance is troubling because, as immigration law practitioners, we never experienced laxity in the adjudication process.  We still had to make a detailed filing and often would face questions about technical points even though a prior petition had been approved.  After this guidance, we have seen a re-examination of all underlying assumptions, leading to excessive documentation of every fact submitted for review.  It has increased the cost and created uncertainty in many applications.

Given that an unexpected denial can wreak havoc in the life of a person holding nonimmigrant status, we have taken this guidance seriously and are urging submission of extensions earlier, even though the timely filing of an extension provides 240 days of additional work authorization.

We sincerely hope that after some experience with this heightened review, USCIS will find that very few incorrect approvals were made, and they can return to a more reasonable review standard that recognizes the need for certainty in the process. 

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