USCIS Updates Policy Manual And Reinstates Policy To Give Deference To Prior Determinations

Tarter Krinsky & Drogin LLP

On April 27, 2021, U.S. Citizenship and Immigration Services (USCIS) updated the USCIS Policy Manual in a Policy Alert to reinstate its policy of giving deference to prior determinations when adjudicating extension-of-stay requests relating to nonimmigrant visa petitions. This policy update generally restores the USCIS 2004 deference policy, which was rescinded in 2017.

This is a significant shift for the agency in its review of standard nonimmigrant petition requests. We anticipate that there will be fewer challenges to petitions that do not merit extreme scrutiny or for which U.S. petitioners seeking simple extensions of stay for foreign national workers will no longer incur significant effort and cost.

What You Need to Know:

  • The updated policy guidance clarifies that USCIS will defer to its own prior determinations and decisions when requests include the same parties and facts unless there is:
    • A material error
    • A material change in circumstances or ineligibility
    • New information that comes to USCIS attention that might adversely affect the U.S. petitioner’s ability and standing to file the petition or relating to the applicant’s or beneficiary’s eligibility for the visa classification
  • USCIS will consider information based on evidence in the record when reviewing petitions under consideration. If an officer determines that deference to a prior approval is not appropriate, the guidance requires that the officer acknowledge the previous approval in the denial notice and clarify the reason for not deferring to a prior determination. The officer must secure supervisory approval before issuing a denial or deviation from prior approval in any final decision.
  • The new guidance further instructs officers to consider other government agencies’ determinations.
  • The new USCIS policy memo takes effect immediately and supersedes any prior guidance, including the 2017 memorandum.

[View source.]

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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