By Peregrine

On 23 October 2017, US Citizenship and Immigration Services (USCIS) cancelled policy guidelines in effect since April 2004, regarding requests for the extension of certain non-immigrant visas (i.e. visa petitions filed using Form I-129).

Previously, an adjudicator’s determination that a non-US citizen met the eligibility requirements for granting a nonimmigrant visa was given deference in subsequent requests for a visa extension where the parties (petitioner and beneficiary) and the underlying facts and circumstances remained the same.

The new policy guidelines now eliminate this deferential policy, requiring an adjudicator to review any request for a nonimmigrant visa extension the same as they would review an initial petition.  This means that an adjudicator may question another adjudicator’s prior approval of the nonimmigrant petition, even if there is no material change in the underlying facts.

USCIS’s new guidelines apply to nearly all nonimmigrant classifications filed using Form I-129, “Petition for a Nonimmigrant Worker.”

Action Items

  • Employers should work with an immigration specialist to review the visa expiration date for employees who hold nonimmigrant visas filed using Form I-129, and should remind such employees that an extension request may take longer, or be denied altogether, under the new policy.
  • Note that, if an extension of a nonimmigrant visa is denied, it is unlawful for the employer to continue employing the former visa-holder after the expiration of the current visa status, and the employment should therefore be terminated.