Biden Administration Brings Back USCIS’ Deference Policy
Disclaimer: This post is not legal advice and should not substitute for obtaining legal advice. Note that laws and interpretation of immigration laws change over time. This is very recent guidance so please check back in for updates or sign up for our newsletter below.
What Happened:
On April 27th, 2021, USCIS announced that the agency is issuing policy guidance instructing
USCIS Officers to give deference to prior determinations when adjudicating extension requests. In other words, USCIS Officers are being directed to defer to prior determinations of approval for extension requests including the same parties and facts. Exceptions to this policy include material changes in the extension request or new material facts to the case. The USCIS Officer can also disregard the prior approval if there is a finding of material error in the prior adjudication.
In issuing this policy guidance, USCIS is reverting back to long-standing guidance issued in 2004, which directed USCIS Officers to defer to prior approvals when adjudicating extension requests so long as the parties and facts of the case remained the same. This policy guidance was later rescinded under the Trump Administration in 2017.
This reinstatement of the deference policy is in accordance with President Biden’s Executive Order No. 14012: Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The Executive Order indicates that the administration seeks to “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits”.
The 2017 rescission of USCIS’ deference policy had a significant impact on case processing timelines, as USCIS Officers were instructed to adjudicate extension requests with nearly identical facts to the initial petition. These processing backlogs were coupled with a significant increase in Requests for Evidence (RFEs) and denials on extension requests, causing an enormous amount of uncertainty for petitioners and international employees whose ongoing employment had otherwise remained the same.
What has changed:
Under the reinstated policy, USCIS Officers must obtain supervisory approval before deviating from a prior approval in adjudicating an extension request. This added step alone is likely to have a significant impact on the efficiency of USCIS adjudication processes for extensions. In addition, the USCIS Officer must confirm the following in their final decision:
Acknowledge the previous approval in the denial, RFE, or NOID (Notice of Intent to Deny);
Articulate the reason for the lack of deference;
Provide the petitioner or applicant an opportunity to respond to any new information.
What we expect going forward:
We anticipate that the reinstated policy will significantly impact the rate of RFEs and/or denials for the following types of employment-based immigration matters:
L-1B and L-1A Extension of Stay requests, both of which received an extremely high level of scrutiny under the Trump Administration (an up to 80% chance of an RFE and/or denial);
H-1B Extension of Stay requests categorized under certain SOC Codes that received a higher level of scrutiny in recent years (e.g. Computer Systems Analysts, Operations Research Analysts);
O-1 Extension of Stay requests, where Petitioners were often made to provide additional evidence to demonstrate the international employee’s extraordinary ability in their field, despite prior O-1 approval(s).
While we anticipate significant changes to adjudication trends under the reinstated policy, the actual impact of this policy cannot be determined until USCIS Officers begin to utilize this policy guidance in practice. It is important to note that USCIS Officers still have wide discretion in their adjudication practices, and new adjudicatory procedures often take several months to fully implement within the agency.
Speak to ImmiPartner to Figure out Your Options
Feel free to reach out to speak with experienced immigration counsel to understand how the reinstatement of the deference policy may impact your immigration program. For those new to working with ImmiPartner please contact us here.