A revision to USCIS Policy Manual 2 USCIS-PM A.4.B. restores a certain amount of deference to employment-based petition extension adjudications, and requires adjudicators to "obtain supervisory approval before deviating from a prior approval in their final decision." USCIS Policy Alert PA-2021-05 (April 27, 2021) summarizes the changes to USCIS Policy Manual 2 USCIS-PM A.4.B., stating that the USCIS Policy Manual :

  • "Clarifies that USCIS gives deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change in circumstances or in eligibility, or new material information that adversely impacts the petitioner's, applicant's, or beneficiary's eligibility."
  • "Affirms that USCIS considers, but does not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies; that officers make determinations on the evidence of record in the petition or application under adjudication."

Background

USCIS Policy Memorandum PM-602-0151 (October 23, 2017), a memo issued under the Trump administration, had rescinded a 14 year old policy communicated in an April 23, 2004 USCIS memo, that had instructed adjudicators to give deference to prior eligibility determinations when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 an extension of stay petition "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. USCIS Policy Alert PA-2021-05 (April 27, 2021) communicated that USCIS updated its guidance at USCIS Policy Manual 2 USCIS-PM A.4.B. "to address the issue of deference to prior determinations of eligibility by an officer when adjudicating a request for an extension of petition validity...", and that the revised guidance "generally restores the 2004 deference policy, with updates, and is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance."

Updated Guidance

USCIS Policy Manual 2 USCIS-PM A.4.B. reads:

B. Extension of Petition Validity

1. Significance of Prior USCIS Approvals and Deference

Deference to Previous Approvals

A request for an extension of petition validity, which is often submitted in conjunction with an EOS request, follows a previous finding of eligibility for the classification. Typically, these determinations are made by USCIS, although U.S. Customs and Border Protection (CBP) and U.S. Department of State (DOS) also make these determinations. Although there is a previous finding of eligibility, the burden of proof in the request for an extension of petition validity remains on the petitioner. [5]

Officers are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated strictly because of a prior approval (which may have been erroneous). [6] USCIS decides each matter according to the evidence of record on a case-by-case basis. [7] However, deviation from a previous approval carries important consequences and implicates predictability and consistency concerns.

As such, any deviation requires close consideration of the previous approval by USCIS. When adjudicating a subsequent petition or application involving the same parties (for example, petitioner and beneficiary) and the same underlying facts, officers should defer to a prior determination that the beneficiary or applicant is eligible for the nonimmigrant classification sought, where appropriate.

Deviating from Previous Approvals

Officers should not defer to prior approvals in cases where:

  • There was a material error involved with previous approval(s);
  • There has been a material change in circumstances or eligibility requirements; [8] or
  • There is new material information that adversely impacts the petitioner's or beneficiary's eligibility. [9]

An officer who determines that deference to a prior approval is not appropriate must acknowledge the previous approval(s) in the denial, Request for Evidence (RFE), or Notice of Intent to Deny (NOID). In addition, the officer must articulate the reason for not deferring to the previous determination (for example, due to a material error, change in circumstances, or new adverse material information). Officers must provide the petitioner or applicant an opportunity to respond to the new information. [10]

As mentioned above, an officer should not defer to a prior approval where new material information is available. This may include publicly available information that affects eligibility for a benefit. For example, an officer may be aware that a petitioner has recently gone out of business. This also includes information that affects national security or public safety garnered from security checks conducted on beneficiaries and petitioners. An officer should not defer to a prior approval when there are indicators of potential fraud or willful misrepresentation of a material fact. The officer must articulate the new material information in an RFE or NOID.

In all cases, officers must obtain supervisory approval before deviating from a prior approval in their final decision.

2. Cases Involving Previous Determinations by Other Agencies

USCIS officers consider, but do not defer to, previous eligibility determinations on petitions or applications made by CBP or DOS. [11] Officers make determinations on the petition filed with USCIS and corresponding evidence on record, as provided above.

Footnotes


[1] See 8 CFR 214.1(a). See 8 CFR 214.1(c) for general requirements, such as those relating to passport validity and waivers of inadmissibility for an EOS.

[2] See INA 248. See 8 CFR 248.

[3] See 8 CFR 214.1(c). The application should be filed in accordance with the form instructions.

[4] The instructions for Form I-539 and Form I-129 provide detailed information regarding who may file each form. Supplemental Information for Application to Extend/Change Nonimmigrant Status (Form I-539A) or Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I-129CW) may also be filed where applicable.

[5] See INA 291. See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[6] See Matter of Church Scientology International (PDF), 19 I&N Dec. 593, 597 (Comm. 1988).

[7] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 2, Record of Proceeding [1 USCIS-PM E.2] for information on what constitutes a record of proceeding.

[8] This includes situations in which the regulations require criteria to be met after approval, such as the nonimmigrant treaty investor (E) classification at 8 CFR 214.2(e)(2)(i) (petitioner must be actively in the process of investing a substantial amount of capital in a bona fide enterprise), and the nonimmigrant intracompany transferee (L) classification at 8 CFR 214.2(l)(3)(v)(C) (a new office has 1 year from the date of the initial approval to support an executive or managerial position).

[9] A fact is material if it would have a natural tendency to influence or is predictably capable of affecting the decision. See Kungys v. United States, 485 U.S. 759, 770-72 (1988). See Matter of D-R- (PDF), 25 I&N Dec. 445, 450 (BIA 2011).

[10] See 8 CFR 103.2(b)(16)(i).

[11] For example, L-1, TN, E-1, E-2, and H-1B1 eligibility determinations. Current as of April 27, 2021