The Yates Memo, published in 2004, entitled The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity, instructed immigration officers to give “deference” to the findings of a prior approved visa petition when adjudicating petition extensions (i.e. visa renewals), as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination.
The Yates Memo was a great tool for extension RFEs, because citing the Yates Memo informed and educated the immigration officer to apply deference to the prior approval. By educating the immigration officer on this deferential legal standard, RFEs were almost always approved. The Yates Memo states: “In matters relating to an extension of nonimmigrant 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.”
The new updated policy, published on October 23, 2017 and entitled Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status, will change extension cases for applicants or beneficiaries of H-1B, L-1A, L-1B, O-1, E-3 visas. The new memo states: “The fundamental issue with the April 23, 2004 memorandum is that it appeared to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same…An adjudicator’s fact-finding authority, as was the case prior to April 23, 2004, should not be constrained by any prior petition approval, but instead, should be based on the merits of each case.”
As a result of this new memo, USCIS’ policy will adjudicate extension cases as fresh or original filings. This means that immigration attorneys will need to approach and argue extension cases as fresh filings. Immigration attorneys will need to extensively argue (with strong documentary evidence) the categories presented in the petition. Additionally, this new policy could possibly also result in a heightened scrutiny of maintenance of status.
Elektra B. Yao is a multilingual Immigration Attorney and the owner of The Law Office of Elektra B. Yao. You can contact her at Elektra@yaofirm.com. Please visit her website at www.yaofirm.com