DHS INSTRUCTS OFFICERS
NOT TO READJUDICATE APPROVED PETITIONS
by Michael J. Gurfinkel, Esq.

In a previous column, I wrote about how the State Department instructed US Embassies not to readjudicate (or re-evaluate) petitions that were already approved by the USCIS, unless there was specific evidence of fraud, changes in circumstances, or clear error on part of DHS in approving the petitions.

Now, USCIS headquarters in Washington DC issued similar instructions to its Service Centers and Regional Directors, when they are adjudicating or making decisions on extensions of previously approved non-immigrant petitions (such as H, L or E visas). The memo advises that in “matters relating to extension of non-immigrant petition validity involving the same parties (petitioner and beneficiary) and the same underlying facts, a prior determination by an adjudicator that the alien is eligible for the particular nonimmigrant classification sought should be given deference.” In other words, when a petitioner and beneficiary are filing for an extension of the alien’s non-immigrant status, the officers should not readjudicate or reevaluate the original “approval”, unless the following circumstances exist:

1. It is determined that there was a material error with regards to the previous petition approval;
2. A substantial change in circumstances has taken place; or
3. There is new material information that adversely impacts the petitioner’s and beneficiary’s eligibility.

According to the memo, a “material error” involves “the misapplication of an objective statutory or regulatory requirement to the facts at hand.” One such example is where an H-1B petition was initially approved, but the beneficiary’s degree is not appropriate for the occupation.

A “substantial change in circumstances” involves “any material change to either the petitioner’s or the beneficiary’s eligibility for the nonimmigrant classification sought.” Some examples include a change in the corporate relationship between a foreign and domestic corporation in connection with an L visa classification. Or, if an H-1B applicant had a temporary license, then the case should be re-evaluated to make sure that they now have obtained a permanent license, in connection with the extension request.

“New material information” means any fact not available to the previous adjudicator that would impact on the petitioner’s or beneficiary’s eligibility for the nonimmigrant classification sought. This would include information that affects national security or public safety, based on security checks.

According to the memo, any extension request where the adjudicator wants to re-adjudicate the case based on material error, substantial change in circumstance, or new material information, “must be clearly articulated in a request for evidence (RFE) or decision denying the benefit.”

Furthermore, the Deputy Center Director must review, and give written clearance for the issuance of, any RFE or denial, in any case involving an extension of stay, where the parties and facts involved have not changed, (but where the current adjudicating officer believes that it is necessary to issue an RFE or deny the application for extension).

I know that many people get frustrated when they were originally granted either H-1B or L-1 status. Then, when they seek to extend their status, they are either hit with an RFE, seeking tons of information and documents, or they get a denial, even though the case had already been approved, and they are only seeking an extension. This memo basically states that if nothing has changed since the time of the original approval, then the adjudicator handling the extension request should not be re-adjudicating the case. However, if there had been material error, substantial changes in circumstances or new material information since the original petition was approved, then the officer can either ask for more information or deny the case.

That is why it is very important that if a person was approved for H-1B or L-1, that they maintain their status and abide by the terms of that visa, (such as working for the petitioning employer, being paid the wage specified in the petition, etc.) so there won’t be changes in circumstance. However, if you have an approved petition but no longer work for that employer, or otherwise violated terms of the existing visa petition, then the immigration officer would have every entitlement to scrutinize, and even deny, your case.

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