Change in Deference Announced for Extension Requests

USCIS just announced that, when it comes to visa extension requests, it will no longer offer deference based on previously decided cases.  The guidance is applicable to just about all of the nonimmigrant categories that are filed with the Form I-129, including H-1B, L-1, H-2B, H-2A, and more.  This represents a sharp shift from the long-standing policy of giving deference to prior determinations when reviewing extension applications.  So long as there was no material error, fraud, or substantially changed circumstances, prior decisions were used as a basis for extension consideration.

Then new policy affirms that each application, even where the facts remain unchanged, must be examined anew.  Though the burden of proof has always been on the petitioner to demonstrate eligibility, this week's announcement clarifies that each application will be independently considered and decided on its individual merits.

One of the notable reasons for the change is that the Agency found it onerous to obtain the record of prior proceedings, particularly in cases where Premium Processing was requested.  The memo states that reviewing the underlying record was "impractical and costly."  The Agency also sought to clarify the burden of proof.

Many immigration attorneys are at odds over what the impact of this loss of deference will be.  H-1B extension requests have typically been submitted with a complete set of supporting evidence, so this represents little change.  Yet, given the corporate background involved in L-1 petitions, such materials were not required and typically not provided in extensions. 

What is likely is additional processing time.  Ellis Porter advises clients to plan accordingly when preparing for extensions and to maximize the earliest filing dates available.  Clients should no longer consider extensions as a "foregone conclusion" just because the initial case was approved. The strongest possible application should be prepared, as coordinated with your Ellis Porter counsel, to increase the likelihood of success and to diminish costly Requests for Evidence.