In response to complaints that the examiners have been denying non-immigrant status extension applications based on facts previously found acceptable, William Yates, the USCIS' Associate Director for Operations, has issued a field memorandum directing officers to refrain from basic re-adjudications.

Many of the cases that prompted the issuance of the memorandum were O-1 visa extensions. O-1s are non-immigrant work visas approved for applicants with extraordinary ability in fields like the sciences, the arts and athletics. Applicants must prove their ability by presenting extensive documentation including support letters, awards, publications, patents, etc. Until recently, if O-1 status was approved by USCIS, extensions would routinely be granted. But in the last two years, USCIS examiners have frequently denied O-1 extension applications on the ground that the applicant failed to demonstrate they had extraordinary ability.

The policy memorandum from USCIS is intended specifically to address the situation where there are no material changes in the underlying facts of the case. The memorandum admits that examiners have been re-adjudicating O-1 cases "as a matter of routine". The new memorandum directs examiners to give "deference" to prior decisions on eligibility for a visa category.

Examiners are permitted to re-adjudicate a petition only in three circumstances:

1. When there was a material error in the original adjudication;

2. A material change in the facts has occurred; and

3. There is new information that adversely impacts the applicant's eligibility.

The new changes should dramatically reduce the number of instances where an examiner can properly deny an extension application. In most cases, they would essentially have to accuse the first examiner of not doing there job properly, something USCIS examiners may be loathe to do. And in O-1 cases, applicants' credentials tend to improve as time goes on so showing that facts have changed and an applicant is no longer extraordinary will be tougher.

The memorandum does remind examiners, however, that applications may still be denied on normal admissibility grounds (such as the applicant's failure to maintain status in the US). In such cases, an applicant might be approved in a "split" decision where classification in a category is approved, but an applicant has to process a visa at a consulate rather than in the US visa a change of status.

A Deputy Service Center Director must also now sign off on the denial of an extension application or even the issuance of a Request for Evidence. This will also likely dissuade an examiner from re-adjudicating the facts of a case.