Tue. Jun 15th, 2021

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USCIS Reinstates Deference to Prior Nonimmigrant Petition Adjudications

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H-1B registrations

U.S. Citizenship and Immigration Services (USCIS) has reestablished its guidance to immigration officials to defer to prior nonimmigrant petition approvals when adjudicating petition extension requests if the facts and parties continue as before. The agency declared today that it has revoked its 2017 policy memorandum. Issued under the Trump government, that reversed a longstanding policy of deferring to prior adjudications.

The Deference Policy | Nonimmigrant Petition Adjudications

Under the reestablished deference policy, which is taking effect right now, officials are directed to generally defer to prior approvals in immigration benefit petitions involving the same parties and facts. Officials may not concede to an earlier approval where there are material changes or where new material information is available that undermines eligibility. Which includes publicly available data influencing eligibility for the benefit. Also, the policy will not apply if there was a material error in the prior adjudication.

In addition, the new guidance needs officers to acquire supervisory approval before deviating from a prior approval on the same facts – a significant departure from prior policy and practice. Also, USCIS affirms that the agency will defer to USCIS determinations only; it will provide consideration to determinations by other agencies.

This policy change follows President Joe Biden’s Executive Order 14012 (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans). Which guides immigration agencies to identify barriers that impede access to immigration benefits and fair, efficient nonimmigrant petition adjudications.

What it means

While USCIS is again requiring deference to prior decisions on extension requests where no material change has happened. The practical impact of the policy change will only be seen through USCIS adjudications. After the 2017 Trump-era policy memo dispensing with the more permissive deference policy.

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Requests for evidence (RFE) increased significantly, even on petitions with many prior approvals on the same facts. Returning to the earlier policy should decrease the number of extension RFEs and reduce their processing times; however, the effect on adjudication trends will rely upon how USCIS officials implement the policy in practice.

We will closely monitor adjudication results and will report on the impact of the reinstated deference policy as trends emerge.

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