USCIS Restores Deference Policy to Certain Prior Decisions

The U.S. Citizenship and Immigration Services (USCIS) has reinstated its policy to defer to previously issued approvals when adjudicating petitions requesting extensions of nonimmigrant status if all the terms and conditions remain the same. This marks a return to the long-standing policy of deference to prior approvals that existed until it was eliminated in 2017 by the Trump Administration.

Background Information

In October 2017, the USCIS rescinded the policy in effect since 2004, which mandated deference to prior determinations of eligibility when making decisions on extensions without change. The October 2017 policy required USCIS officers to review every extension of status request, without deferring to prior approvals, even for extensions with the same parties and where there was no change in facts or any evidence of gross error. This policy increased the number of requests for evidence (RFEs) and denials, and presumably was one of the factors that resulted in increased processing times.

Return to the USCIS Policy Providing Deference to Prior Determinations

Effective April 27, 2021, the USCIS is again giving deference to prior determinations when adjudicating nonimmigrant petition extension requests, without change, unless there was a material error, material change in circumstances or in eligibility, or new material information that would have an adverse impact on eligibility. USCIS officers will be required to obtain supervisory approval before deviating from a prior approval based on the same facts.

Under this deference policy, officers will only defer to prior determinations made by the USCIS. If the prior decision was made by a different agency (e.g., E-3 approved by a consulate officer), the USCIS will consider, but not defer to, the prior determination.

Impact of Return to the USCIS Policy Providing Deference to Prior Approvals

The reversion to the previous USCIS rule requiring deference to prior decisions on nonimmigrant extension requests is expected to decrease the number of RFEs and reduce processing times. Further, it should provide greater consistency and reliability for employers and their nonimmigrant workers.

Conclusion

Reverting USCIS policy to deference to prior decisions is a welcome change that most likely will improve and streamline the extension process of nonimmigrant categories as well as help to reduce the difficulties faced by many foreign nationals in obtaining extensions of nonimmigrant status. The Murthy Law Firm is monitoring the implementation of this policy change. Our attorneys are available to provide assistance to employers and employees as they navigate extensions of nonimmigrant categories.

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