USCIS Reverses “No Deference” Policy on Prior Determinations

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In a welcome reversal of a Trump-era policy decision, on April 27, 2021, U.S. Citizenship & Immigration Services (USCIS) announced that it is issuing policy guidance in the USCIS Policy Manual instructing officers to give deference once again to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change, or new material facts.

This policy guidance, initially issued in 2004, guided USCIS officers generally to defer to prior determinations of eligibility when adjudicating petitions to extend nonimmigrant status, where the extension petition involved the same parties and same facts as the initial petition. In other words, where an employer was filing to simply extend the nonimmigrant status of an employee, whether it be in H-1B, L-1, O-1, or other visa classification, and if there had been no material changes or new material facts, USCIS would defer to the prior approval and, in most cases, approve the extension petition as well without undue scrutiny.

In 2017, however, USCIS rescinded the 2004 policy, instead asserting that each petition would be viewed on its own merits as if it were an entirely new petition, without regard to any prior decisions made by USCIS for this petitioner or beneficiary. This 2017 “No Deference” policy resulted in lengthened processing times, increased Requests for Evidence (“RFEs”) issued by USCIS for extensions, and oftentimes illogical results of extension requests being scrutinized or denied despite the fact that there had been no changes in the offered position, the beneficiary’s qualifications, or the legal requirements since a previous approval from USCIS.

Acknowledging the arbitrary nature of the “No Deference” policy, in reinstituting its policy to grant deference to prior approvals, USCIS noted that although officers are not bound to approve subsequent petitions in all cases, “deviation from a previous approval carries important consequences and implicates predictability and consistency concerns,” and “[a]s such, any deviation requires close consideration of the previous approval by USCIS.” According to the revised USCIS Policy Manual, any deviation from a prior approval now requires supervisory approval. The anticipated result of this policy change will be improved predictability and increased certainty for both employers and employees alike when filing to extend an employee’s visa status in the United States.

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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