ALERT: NIV Extensions Receive New Scrutiny

A long-standing U.S. Citizenship and immigration Services (USCIS) policy giving deference to previously approved nonimmigrant visa (NIV) petitions has been rescinded effective October 23, 2017. Under the prior policy, USCIS asked its adjudicators to give some deference to requests for extensions of previously approved NIV petitions. This week, USCIS issued a “Policy Memorandum” https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference-PM6020151.pdf that reversed this prior policy and charged its adjudicators to use their full fact-finding authority in every case, regardless of any earlier decision by the agency. This new policy emphasizes that the applicant for a NIV case bears the burden of proof, and that this burden never shifts to USCIS. In addition, this Policy Memorandum explicitly references its “current priorities” and its policies to “protect the interests of U.S. workers.” This seems to indicate that the action is being taken as part of efforts stemming from the President’s “Executive Order on Buy American and Hire American” https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american. While this change in policy may affect only certain individuals who are in the US in NIV status, it does indicate a general trend toward increasing barriers toward immigration imposed by the current administration.   At Taylor & Ryan, we have always taken a conservative approach when filing extension requests.  We generally document the extension just as we documented the initial petition.  With this announcement, however, we may redouble our efforts to ensure that the petitions meet the increasingly stringent review and that the risk of receiving  a request for evidence is minimized.