USCIS POLICY CHANGE: USCIS To Scrutinize I-129 Extension Requests with Same Level of Scrutiny as Initial I-129 Petitions

On October 23, 2017, USCIS issued a Policy Memorandum titled “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status.” This Policy Memorandum rescinds the previous USCIS policy which guided officers to give deference to the findings of a previously approved I-129 petition, as long as the essential elements remained unchanged. In other words, the previous policy allowed USCIS to give prior I-129 approvals deference in adjudicating subsequent I-129 extension petitions. Following the October 23, 2017 policy memorandum, that policy is now rescinded and the updated guidance is effective immediately.

Going forward, USCIS officers will apply the same level of scrutiny to extension petitions as initial I-129 petitions, meaning that a prior I-129 approval will not have any weight in the review process. According to USCIS’ press release, I-129 petitioner should expect USCIS officers to apply the same level of scrutiny when reviewing I-129 extension requests, “even where the petitioner, beneficiary, and underlying facts are unchanged from a previously approved petition.” The new policy applies to nearly all nonimmigrant classifications filed using the I-129 form. The burden of proof in establishing I-129 eligibility for an extension request is with the petitioner. As such, I-129 petitioners should adjust accordingly in light of the new policy.

This new policy is a part of the “Buy American, Hire American” initiatives being implemented by USCIS as a result of the executive order signed by President Trump on April 18, 2017. According to the USCIS press release, “USCIS officers are at the front lines of the administration’s efforts to enhance the integrity of the immigration system. This updated guidance provides clear direction to help advance policies that protect the interests of U.S. workers.”

More information about the Buy American, Hire American initiative can be found here.

The 10/23/2017 Policy Memorandum is available here and the USCIS press release regarding the Policy Memorandum is available here.

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