Extension Requests Thoroughly Reviewed Despite Prior Petition Approval

Extension Requests Thoroughly Reviewed Despite Prior Petition Approval

Since about 2004, USCIS had a policy that if an initial H-1B petition was approved, and the alien later applied for an extension, the officer adjudicating the extension was to show deference (respect for another person because of that person’s knowledge, experience, etc.), except in the limited circumstances where the officer processing the extension determined there was a “material error”, substantial change in circumstances, or there is new material information that would adversely impact the petitioner or beneficiary’s eligibility.

In other words, if an H-1B petition had already been approved, ordinarily the extension should likewise be approved.

However, on October 23, 2017, USCIS issued a Policy Memorandum rescinding (or canceling) that 2004 policy of requiring officers to defer to prior determinations in petitions for extensions of nonimmigrant status. Instead, for any extension request “adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determine eligibility for the benefits sought.” Prior approval of a petition should not be taken at face value, but instead the officer adjudicating the extension should thoroughly review the entire case and make his or her own independent determination of eligibility.

Many people obtained approval of their non-immigrant H-1B (or L-1) petitions, and think that they will receive an automatic extension because “nothing has changed”. The officer will just rubber-stamp the extension. However, this new memo makes it clear that the prior approval of the petition does not automatically mean the extension will be approved. Maybe the first officer overlooked something. Maybe there have been changes in employment, or the person was not being paid the wage listed on the initial petition. Maybe the person worked for a different employer (or moonlighted) without proper work authorization for that second job.

All of these items could affect a person’s eligibility for their working status and affect the approval of an extension.
Therefore, if you have an H-1B visa that is expiring, you should consult with an attorney who can advise and assist you in filing the extension, to make sure you meet all eligibility requirements, since under the Trump administration, USCIS will thoroughly review and investigate that extension request.

Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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