USCIS Memo Rescinds Deference Policy in Employment-Based Nonimmigrant Petition Extension Cases

October 25, 2017


An October 23, 2017 USCIS memo reasserts USCIS authority to ask for additional documentation regarding the petitioner's and beneficiary's basic eligibility for the classification, even in extension of stay petitions.

Read the USCIS News Alert and October 23, 2017 Memo

Rescission of the policy to give deference to prior adjudications in extension petitions

The October 23, 2017 USCIS memo specifically rescinds a 14 year old policy communicated in an April 23, 2004 USCIS memo, that had instructed adjudicators to give deference to prior eligibility determinations when adjudicating H-1B extension of stay petitions "involving the same parties (petitioner and beneficiary) and the same underlying facts," unless the prior approval involved material error, a substantial change in circumstances, or there is new material information that adversely impacts the petitioner's or beneficiary's eligibility. The new memo also rescinds similar parts of an August 17, 2015 USCIS memo on L-1B adjudications.

"USCIS is rescinding the policy of requiring officers to defer to prior determinations in petitions for extension of nonimmigrant status as articulated in the above memoranda. USCIS is also providing updated guidance that is both more consistent with the agency's current priorities and also advances policies that protect the interests of U.S. workers."

The second sentence above places the October 23, 2017 USCIS memo in the context of the priorities and policies communicated in the Buy American Hire American (BAHA) executive order.

Scope of the new policy to no longer give automatic deference to prior adjudications

Although the October 23, 2017 USCIS memo does specifically rescind the "deference" portions of the prior H-1B and L-1B memoranda, the "updated guidance" in the new memo is very broad:

"In adjudicating petitions for immigration benefits, including nonimmigrant petition extensions, adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought [citing AFM 10.3(a)]. The burden of proof in establishing eligibility is, at all times, on the petitioner [citing INA 291]."

Since the "updated guidance" in the memo does not single out particular categories, the new policy to no longer give automatic deference to prior adjudications will likely apply to all employment-based nonimmigrant petition extensions, e.g., H-1B, L-1, O-1, etc.

Extension petitions and supporting documentation

The H-1B extension regulations describe a rather streamlined extension process. 8 CFR 214.2(h)(14) states that "[s]upporting evidence is not required unless requested by the director," and 8 CFR 214.2(h)(15) mentions only Form I-129 and a copy of the DOL-certified LCA as supporting documentation.

The O-1 extension regulations describe a similar basic extension process at 8 CFR 214.2(o)(12), stating that the O-1 "petitioner shall request extension of the alien's stay to continue or complete the same event or activity by filing Form I-129, accompanied by a statement explaining the reasons for the extension. The petitioner must also request a petition extension."

Form I-129 instructions, however, also instruct petitioners to submit proof that the beneficiary has been maintaining status. The instructions state:

"For all classifications, if a beneficiary is seeking a change of status or extension of stay, evidence of maintenance of status must be included with the new petition. If the beneficiary is employed in the United States, the petitioner may submit copies of the beneficiary's last 2 pay stubs, Form W-2, and other relevant evidence, as well as a copy of the beneficiary's Form I-94, passport, travel document, or I-797."

Petitioners also usually include a detailed letter confirming the employment and requesting the extension of stay.

Although USCIS acknowledges in the October 23, 2017 memo that petition extension regulations like 8 CFR 214.2(h)(14) and 8 CFR 214.2(h)(15) "do not require supporting documents to be submitted as initial evidence when an employer files a petition extension without change on behalf of the same alien," the agency goes on to state that:

"... although these regulatory provisions govern what is required to be submitted at the time of filing the petition extension, they do not limit, and, in fact, reiterate, USCIS' authority to request additional evidence. While adjudicators should be aware of these regulatory provisions, they should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension..."


"While adjudicators may, of course, reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point."

Some practical questions

From a practical standpoint, two big questions for petitioners seeking extensions in the employment-based, petition-based nonimmigrant categories are:

  1. Will they see an even greater increase in RFEs for H-1B and O-1 extensions (and any other I-129 employment-based category)?
  2. To what extent should they begin providing more detailed explanations or additional supporting documentation in extension applications, so as to avoid an RFE? For example, to reestablish how:
    • For H-1B extensions, how the job qualifies as a specialty occupation, and how the beneficiary possesses the required qualifications?
    • For O-1 petitions, the extraordinary ability of the beneficiary?

Key H-1B Regulations

Government H-1B Links

NAFSA Resources