R.I.P Yates Memo: 2004-2017

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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.


About The Author

Elektra is the founder and principal attorney at The Law Office of Elektra B. Yao a full service, comprehensive immigration and general practice law firm. Ms. Yao is admitted to the New York Bar and she practices U.S. Immigration and Nationality law and Deportation Defense in all jurisdictions of the United States of America. Ms. Yao earned her Bachelor’s Degree in Communication Arts from Marymount Manhattan College in NYC in 2008 and earned her Juris Doctor from Lewis and Clark Law School, a nationally ranked, top-tier law school in 2011. In 2010, she studied in London under Loukas Mistelis, the Professor and Director of the School of Arbitration at the prestigious UK law school Queen Mary University. Ms. Yao also studied at the University of Beijing Law School, the leading Chinese law school, where she earned a Certificate in Chinese business and civil law; along with studying at the prestigious Sorbonne University in Paris, France and in Florence, Italy where she earned Certificates in Comparative Law. Ms. Yao was also invited to study Eastern European Law at Eotvos Lorand University, the best law school in Hungary. She has also completed all of the coursework for a Master’s in Law in European and Spanish Law from the University of Salamanca. She holds multiple Certificates in Italian and European Immigration Law and Policy. Ms. Yao spent several years working for leading boutique immigration law firms where she developed her expertise in employment based and family based immigration law. Ms. Yao is highly experienced and proficient in US and EU Immigration Law and Policy. As such, Ms. Yao has provided her immigration legal services to businesses and individuals in the US, Italy, Spain, and Cote d’Ivoire. Ms. Yao has lived, studied, and worked internationally in the US, the EU, and Africa and she is fluent in French, Italian, Spanish, and English.


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