Biden Administration’s USCIS Reinstates Longstanding, Employer-Friendly Deference Policy

Foley & Lardner LLP

Foley & Lardner LLP

As of April 27, 2021, the Biden administration has reinstated a longstanding policy of U.S. Citizenship & Immigration Services (USCIS) that the Trump administration revoked in its first year.  The reinstated policy, commonly referred to as the “Deference Policy,” had been in place since April 2004.  The policy instructed USCIS officers to give deference to prior employment visa determinations when adjudicating visa extension requests involving the same parties and facts unless there was a material error, material change in circumstances or new material information that adversely impacts the eligibility of the petitioner, applicant, or beneficiary of a sought-after visa extension petition.

The Trump administration’s revocation of the Deference Policy was a linchpin of the administration’s efforts to depart from the adjudication policies of previous Republican and Democratic administrations.  Revocation of the policy required USCIS officers to adjudicate employment visa extension requests as if there had never been a previous approval of the same visa benefit for the same employer, employee and job.  The result was that employers’ visa extension petitions were subjected to more scrutiny, and burdensome requests for evidence (RFEs), resulting in processing backlogs and delays of otherwise previously adjudicated matters.

The Biden administration’s policy change, effective immediately, reinstates the 2004 policy of deferring to prior determinations of eligibility when extension requests involve the same employer, employee and employment terms as the initial petition or application.  In practice, reinstatement of the Deference Policy means USCIS must give weight to its previous approval of an employment visa status.  Under the reinstated policy, USCIS can only depart from a previous approval if it finds that the original approval was materially wrong based on the visa’s legal requisites or a material change in facts has transpired since the original approval that now makes extension of the employment visa status unwarranted.

Under the reinstated policy, if a USCIS officer does not defer to the prior approval, the officer must:

  • Acknowledge the previous approval in the denial, RFE, or NOID (Notice of Intent to Deny);
  • Articulate the reason for the lack of deference;
  • Provide the petitioner or applicant an opportunity to respond to any new information, and;
  • Importantly, obtain supervisory approval before deviating from prior approval.

Reinstatement of the Deference Policy is a consequence of President Biden’s February 2, 2021, Executive Order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.  U.S. employers expect the reinstatement to expedite processing of employment visa extensions and restore predictability in employers’ retention and professional development of globally sourced human resources.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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