by Chris Musillo

The healthcare staffing and IT staffing industries have seen a large uptick in H-1B amendments being generated as a result of the USCIS foolish Simeio Solutions decision. One issue that has come as a surprise to many clients is that an H-1B amendment is essentially no less work than a new H-1B cap-subject or H-1B extension petition.

USCIS policy on deference to prior petitions is explained in a 2004 USCIS Memorandum by William Yates. Technically, USCIS officers are supposed to give deference in extension petitions unless,

(1) it is determined that there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility. Material error, changed circumstances, or new material information must be clearly articulated in the resulting request for evidence or decision denying the benefit sought, as appropriate.
(April 23, 2004, Yates Memorandum)

The problem is that this section is made toothless by the next paragraph:

[t]his memorandum does not in any way restrict or impact an adjudicator’s ability to deny, in the exercise of his or her discretion, the beneficiary’s simultaneous request to extend his or her stay in the United States in the same classification.

As a result, the USCIS only pays lip-service to deference in amendment and extension petitions. The adjudicating officer will casually mention one of the three instances and then ask for entirely new information. The officer will usually point to the sentence that the memorandum is not “in any way” meant to restrict the adjudicator’s ability to deny a case.

Essentially all H-1B legal points must be re-raised by the employer and will ultimately be re-adjudicated by the USCIS.

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