USCIS Reverts to Pre-Trump Deference Policy for Evaluating Extensions

USCIS reversed a Trump-era policy that directed officers to “thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought,” even for extensions with the same facts remained true. The policy could have been a contributing factor to the long processing times that have become normal over the past few years. The 2017 policy update reversed a “deference” policy memo first implemented in 2004 during George W. Bush’s presidency that allowed officers to defer to prior determinations when adjudicating extensions involving the same parties and facts. This allowed officers to consider past approvals unless there was a material error, material change, or new material facts. The Policy Manual also requires that when not deferring to the original adjudication outcome, “the officer must articulate the reason for not deferring to the previous determination (for example, due to a material error, change in circumstances, or new adverse material information). Officers must provide the petitioner or applicant an opportunity to respond to the new information.”

With the updated guidance, officers can once again defer to prior eligibility determinations for extensions, including H-1B, H-4, L-1, and other nonimmigrant visa types, but does not include petitions where the initial approval is granted to allow the petitioner or beneficiary to prospectively satisfy the requirements, such as implementing a tentative or prospective business plan. For example, the deference policy would not apply to individuals entering under the L-1 new office visa because the individual must satisfy the growth requirements to qualify for an extension. Treaty investors would also not qualify as the petitioner must be actively investing a substantial amount of capital in a bona fide enterprise.

The update was made to Volume 2 of the Policy Manual. 2 USCIS-PM A.4 – Chapter 4 – Extension of Stay, Change of Status, and Extension of Petition Validity.

USCIS Announcement

USCIS is issuing policy guidance in the USCIS Policy Manual instructing officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change, or new material facts.

With this update, USCIS is reverting in substance to prior long-standing guidance issued in 2004, which directed officers to generally defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as the initial petition or application. In 2017, USCIS rescinded the 2004 guidance.

This update is in accordance with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The executive order directs the secretary of homeland security to identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits. Affording deference to prior approvals involving the same parties promotes efficient and fair adjudication of immigration benefits.

For more information, see the policy guidance.

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