Sindell Law Offices E-Min Newsletter (Vol. 4) - English Article #15

    

William Yates, Associate Director for Operations of the US CIS, distributed a memo recently about questioning prior approvals of a petition where there is no material change in underlying facts. We are summarizing that memo for your information.


Mr. Yates writes that in matters relating to an extension of nonimmigrant petition validity involving the same parties 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. A case where a prior approval of the petition need not be given deference includes,


(1) where 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

(3) there is new 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.


Mr. Yates continues to note that the memorandum does not in any way restrict or impact the adjudicators ability to deny the beneficiary's simultaneous request to extend his or her stay in the United States.


Mr. Yates defines material error as a misapplication of an objective statutory or regulatory requirement to the facts at hand. An example, is an H-1b approval where the beneficiary's degree is not appropriate for the proffered position. Generally, adjudicators should not question prior adjudicators determinations that are subjective, such as the prior adjudicator's evaluation of the beneficiary's education or experience.


My personal comment to the above is that Mr. Yates definition of material error seems confusing, since he gives an example of a material error which is objective, as a beneficiary's degree is not appropriate for the proffered position but goes on to say that adjudicators should not question prior adjudicator's determinations that are subjective. I don't understand how a determination that a beneficiary's degree is not appropriate for a position to be anything but subjective. Therefore, it would seem that Mr. Yates example is counter productive to his alleged goal.


He goes on to state that a substantial change in circumstances involves any material change to either the petitioner's or the beneficiary's eligibility for the nonimmigrant classification sought.


In the L classification, a change in the corporate relationship, a change in the nature of the beneficiary's employment would be considered a substantial change.


In the H classification, if a license is required, that the beneficiary has the license. Or a move of the beneficiary's employer outside of the U.S. requires a new determination to see whether the petitioner continues to be a U.S. employer.


In there is no material error or substantial changes, Mr. Yates requires that the Deputy Center Director review and clear in writing, prior to the issuance of an RFE or final decision, any case involving an extension of stay of petition validity in a nonimmigrant classification where the parties and facts involved have not changed, but where the current adjudicating officer determines nonetheless that it is necessary to issue an RFE or deny the application for extension of petition validity.