Readjudications Restricted for Extensions
Posted May 14, 2004

William R. Yates, the USCIS Associate Director for Operations, issued a Memo on readjudications on April 23, 2004. It guides USCIS examiners not to deny or challenge a previously approved petition or application, especially in those cases where there are no material changes that would impact the extension petition or application.
 
The USCIS has previously made it clear that each petition must qualify in its own right and must be fully documented. The Memo clarifies the proper role of the USCIS examiner in situations involving previously approved cases. Essentially, the Memo reestablishes that the USCIS has the authority to question prior determinations, but sets policy limits on when this questioning should occur. It is particularly addressed to situations without material changes in the underlying facts of the case.

Readjudication is a word used to describe the situation in an immigration matter where the prior approval of a petition or application is not granted deference and a subsequent examiner substitutes his or her judgment for the decision of the prior USCIS examiner. This arises in a variety of situations including, for example, the filing of requests for H1B extensions. There are times when a petition for an H1B is approved, and then a later petition for extension of the H1B status, based upon the same job, same employer, and other similar or identical facts, is denied for a reason such as the position not qualifying as a "specialty" occupation even though the law has not changed in the interim.

New Policy – Overview

The USCIS does have the power to question its own prior decisions, and is not bound to a factual or legal determination simply because a previous examiner made a particular decision in the past. The USCIS must decide each case on its own merits, and does not have to rely upon any prior decisions, as they could have been wrong or erroneous. However, the Yates Memo clarifies that USCIS examiners should not routinely question earlier decisions and readjudicate cases if there is no material change in the underlying facts.

Policy Applies Primarily for Extensions

The Memo makes it clear that prior decisions should be given deference when the same petitioner and beneficiary file an extension of status request and there has been no change in the facts of the case. This deference should not be given if the examiner determines that there was a material error in the prior approval. It is also not applicable if there has been a substantial change in circumstances or the examiner is aware of new information that negatively reflects upon the eligibility for the benefit sought. If the examiner denies a petition in this instance, s/he must articulate the material error, changed circumstances, or new information that formed the basis of the subsequent denial. Thus, inconsistent decisions must be explained in writing.

Certain Extensions Can Be Denied

The Memo does not apply to certain types of cases where an approval is issued for the purpose of allowing an individual to carry out a business plan prospectively. These types of cases include L-1s for new offices and treaty investors. These individuals are given a limited period in which to establish businesses and meet regulatory criteria for any extensions. They must reach the stated or expected goals within the allotted time or their extension status will be denied.

Extensions of Status Not Required if Status Not Maintained

The Memo does not limit an examiner's ability to deny a request for an extension of status contained in the petition filing. It only addresses the extension of the validity of the petition. If the individual beneficiary is not eligible for an extension of status within the U.S. due to failure to maintain status or any other relevant factor, then the petition itself can be approved, but not the extension of the individual's status. In that event, there will not be an I-94 at the bottom of the approval notice and the individual will be directed to leave the United States and apply for a visa at the consulate or reenter the U.S. from foreign travel to return to legal status.

Fraud / Misrepresentation is Always a Reason to Deny or Revoke

The Memo similarly does not impact the ability by the USCIS to revoke a petition for fraud or misrepresentation. This happens commonly when an individual applies for a visa at the consulate and the consulate determines that the individual's credentials are not genuine or that there have been other types of misrepresentation in the matter.

Review by Deputy Center Director

In a case where an examiner believes an extension of a petition or application should be denied, based upon a material error, substantial change in circumstance, or new material information, a review must be made by the Deputy Center Director before either a Request for Evidence (RFE) or a final decision can be issued.

We at The Law Office of Sheela Murthy, P.C. are pleased with this USCIS Memo. This change is positive, both in terms of potentially expediting case reviews and providing for reliability and uniformity regarding previously approved cases. Employers and applicants need to be able to depend upon obtaining extensions and necessary services of their nonimmigrant employees or an immigration benefit previously granted. Most make the reasonable assumption that a case that was approved once will be approved again, barring materials changes in the facts or the law. If the Memo is implemented, thanks to the efforts of various attorneys, it will also help the USCIS with its backlog reduction plan, since time and energy will not be expended in dealing with denials of cases subject to the Memo.