New USCIS Policy: RFE Everything From Initial Petition To Extensions

In a significant development, USCIS has issued a new Policy Memorandum superseding and rescinding previous guidance regarding deference to prior determinations of eligibility in adjudication of Form I-129 petitions seeking extension of nonimmigrant status.

The previous USCIS policy, in existence since 2004, instructed that previously approved petitions should be given deference. This meant that unless there was any material error or fraud in the previous determination, USCIS officers should approve petitions for extensions of stay that had the same petitioner, beneficiary and basic underlying facts.

The updated guidance, which applies to nearly all nonimmigrant classifications filed using Form I-129, including H-1B, and L-1 visas, instructs USCIS officers to now apply the same level of scrutiny to both initial petitions and extension requests. This means that extension petitions will be treated the same as new petitions and it will not matter that USCIS previously approved a petition with the same facts.

USCIS aims to remove any “constraints” that USCIS officers may have from prior determinations and approvals. While the true impact of the new policy will become more evident in the coming days, it is reasonable to expect an increase in the number of RFEs being issued in Form I-129 extension petitions, especially for H-1Bs and L-1s.

Petitioners filing Form I-129 extension petitions must make sure to include all the necessary supporting documents with the extension petition to minimize the impact of this new guidance and not take for granted that USCIS has previously approved an I-129 with the same facts and information.

If you have any questions regarding extension of status, or need any assistance in filing a Form I-129 extension petition, please Contact VisaPro immediately. Our experienced attorneys will be happy to assist you.

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