Immigration Alert: USCIS Policy of 'Deference' Restored

U.S. Citizenship & Immigration Services (USCIS) has issued new guidance through an update to its own Policy Manual, returning to a previous policy of showing deference to its own prior case adjudications. USCIS will apply this new standard when reviewing nonimmigrant Extension of Status requests, such as H-1B, L-1, TN, O-1, and E-2 filings, involving the same parties and facts. USCIS has also confirmed that the Service considers, but does not defer to, previous eligibility determinations made by other U.S. government agencies.

Specifically, the new USCIS policy announces the following:

• Deference to Prior USCIS Decisions: Clarifies that USCIS gives deference to prior determinations when adjudicating extension requests involving the same parties and same facts, unless there was a material error, material change in circumstances, or new material information that adversely impacts eligibility.
• Consideration of Other Agency Decisions: Affirms that USCIS considers, but does not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies; that officers make determinations on the evidence of record in the petition or application under adjudication.

This is an extremely positive update for U.S. employers and their sponsored employees. Through this announcement, USCIS has rejected the prior administration’s policy of reviewing all cases as new filings, without any regard to a prior approval—or series of approvals—already issued on behalf of the same petitioning employer and sponsored employee. By again showing deference to their own prior decisions, USCIS is restoring a degree of predictability and consistency to their case adjudications process. This will also likely reduce the number of redundant Requests for Evidence which had resulted from the Trump-era policy.

Please contact me or another member of our Immigration Practice Team if you have any questions, or would otherwise like to discuss.