USCIS No Longer Affording Deference to I-129-based Extensions

For over 10 years, USCIS has taken the approach that, when adjudicating extension petitions involving the same employer, the same beneficiary, and the same underlying facts, its adjudicators would defer to prior approval determinations. USCIS has now reversed this policy, interpreting it as placing an extra burden on the agency to find and compare an old petition to an extension and shifting the burden of proof to USCIS when that burden lies with the petitioner. Moving forward, USCIS officers will be treating all extensions as independent and new filings, even though promulgated regulations do not require supporting documents in many kinds of nonimmigrant extension cases. In its announcement, USCIS also stated that it does not want its adjudicators to rely on previous determinations at all, as it may have the unintended consequences of missing material defects in prior petitions.

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