Share with your friends

United States – Revised Policy on Burden of Proof and Nonimmigrant Extension Petitions

US–Rev. Policy: Burden of Proof/Nonimmig Ext Petitions

This report covers new policy guidance from USCIS instructing its officers to apply the same level of scrutiny to both initial nonimmigrant petitions and extension requests for nonimmigrant visa categories.


Related content


Under updated policy guidance issued on October 23, 2017, U.S. Citizenship and Immigration Services (USCIS) is instructing its officers to apply the same level of scrutiny to both initial nonimmigrant petitions and extension requests for nonimmigrant visa categories.1 


  • The burden of proof in establishing eligibility for the visa petition extension is placed on the petitioner, regardless of whether USCIS previously approved a petition.
  • Companies with employees in nonimmigrant status should expect that USCIS will exercise greater scrutiny of nonimmigrant extension petitions, which may increase the likelihood of employers receiving requests for evidence (RFEs). 


Previously USCIS officers would give deference to prior determinations of eligibility when deciding whether to grant an extension of stay as long as the key elements remained the same, and no material error or fraud was found in the prior determination.  The updated policy guidance rescinds this policy.

More Details on the Guidance

According to the USCIS Policy Memorandum of October 23, 2017, the prior guidance had the effect of:

  • shifting the burden of proof to the U.S. authority, which was counter to Congress’ intention , and
  • “…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…and was also impractical and costly to properly implement, especially when adjudicating premium processing requests.”

Additionally, the Memorandum notes that the updated policy is “more consistent with the agency’s current priorities and also advances policies that protect the interests of U.S. workers” as described in the President’s April 2017 Executive Order to “Buy American and Hire American.”2  


If you have any questions about how this policy revision may affect your company or employees, please contact a qualified immigration attorney.  

KPMG Law LLP’s immigration practice will continue to provide updates about this topical issue as developments arise.


1  “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” (October 23, 2017) (PDF 98 KB)

2  White House Press Release on “Buy American and Hire American” Executive Order (April 18, 2017).

*  Please note that KPMG LLP (U.S.) does not provide any immigration services.  However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.   

The information contained in this newsletter was submitted by the KPMG International member firm in Canada.

© 2021 KPMG LLP, a Delaware limited liability partnership and a member firm of the KPMG global organization of independent member firms affiliated with KPMG International Limited, a private English company limited by guarantee. All rights reserved.

For more detail about the structure of the KPMG global organization please visit

Flash Alert is an Global Mobility Services publication of KPMG LLPs Washington National Tax practice. The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

Connect with us


Want to do business with KPMG?


loading image Request for proposal

Stay up to date with what matters to you

Gain access to personalized content based on your interests by signing up today

Sign up today