Uncertain Future for USCIS Deference Policy

A unique feature of U.S. immigration law is how certain rules and policies can change depending on who is in the White House. A President’s ability to dictate and change immigration law or policy often depends on whether a rule is statutory, regulatory, or administrative policy. For more information on understanding the difference between these classifications and how they impact what benefits are most susceptible to change depending on who occupies the White House, please refer to the MurthyDotCom NewsBrief, Uncertain Future of Various Immigration Benefits (24.Jun.2024). In this article, we focus specifically on the deference policy, which has a fairly large impact on many nonimmigrant applications and petitions.

History of the Policy

It had been a long-standing policy of the U.S. Citizenship and Immigration Service (USCIS) to defer to the previously approved petition in a case where an application or petition is filed for a nonimmigrant requesting an extension of stay, and the case involves the same parties and the same underlying facts. There were some exceptions to this policy, and it did not mean that the USCIS was not permitted to deny an extension for a case that had previously been approved, but it did provide some consistency and reliability in the adjudication process, and improved efficiency for the USCIS.

In October 2017, however, the Trump Administration USCIS rescinded the deference policy. Under President Trump, the USCIS was directed to review every extension of status request anew, without consideration for prior approvals. This policy increased the number of requests for evidence (RFEs) and denials, and presumably was one of the factors that contributed toward the significant increase in processing times.

On April 27, 2021, at the direction of the Biden Administration, the USCIS reinstated its deference policy. As before, there are exceptions to when a case should be given deference. But, if a USCIS officer determines that deference is not appropriate, the officer must indicate the reason in the denial, request for evidence (RFE), or notice of intent to deny (NOID). Moreover, the officer must obtain supervisory approval before deviating from a prior approval based on the same facts.

What if Deference Policy is Rescinded Again?

If Donald Trump wins the election in November, it seems reasonable to expect that the USCIS deference policy again will be eliminated. This, along with other policy changes, will inevitably result in a spike in the number of RFEs, an increase in processing times, and reduced consistency in adjudications.

Conclusion

A new president will be sworn into office on January 20, 2025. Depending upon who that is, it may be considerably easier to get an extension without change approved before that date than after. Nonimmigrants may wish to consider applying early, just in case the process becomes significantly more challenging in the not-too-distant future.

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