United States: USCIS Reverses Course On Trump-Era Policy Instructing Officers Not To Give Deference To Previously Approved Petitions

In response to President Biden's executive order, "Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans," U.S. Citizenship and Immigration Services (USCIS) issued a new policy on April 27, 2021, effective immediately, directing officers to "generally defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition." (New Deference Policy)

Thus, USCIS now permits officers again, in most cases, to give weight to a prior USCIS adjudication of approval as to extension requests involving the same parties and facts, unless there was a material error, material change in circumstances or eligibility, or new material information that adversely impacts eligibility.

For example, if USCIS previously approved an L-1A petition, finding that the foreign national is a manager, and there have been no material changes to his or her job duties, then USCIS should not later deny that same foreign national's L-1A extension petition because it no longer considers the person to be a manager. At the very least, the officer should defer to the agency's prior determination that the role qualifies for an L-1A managerial visa, which is exactly what the New Deference Policy purports to do.

In issuing this new policy, USCIS rescinds, at least in theory, its October 2017 policy memorandum (PM-602-0151) instructing officers to re-adjudicate every case without giving any deference to prior approvals (2017 End of Deference Policy Memorandum), and substantively restores the Service's pre-Trump era deference policy of 2004. Conceptually, the New Deference Policy should give foreign nationals seeking to extend their stay several advantages. For example, since officers must now give greater weight to previously approved petitions, foreign nationals should expect faster adjudication times as well as greater approval odds. In other words, if the officer no longer needs to re-adjudicate the case from scratch, and instead can begin with the assumption that the foreign national qualifies for the nonimmigrant status previously approved; then it should take less time to adjudicate the extension request and, barring any material change in circumstances, the officer should approve the request.

In addition to faster adjudication times and greater approval odds, the New Deference Policy should also lead to fewer requests for evidence (RFE). Reviewing USCIS data since 2015, it should come as no surprise that the number of RFEs issued by USCIS officers grew exponentially since the agency issued its 2017 End of Deference Policy Memorandum. The following chart shows the number of RFEs issued for H-1Bs, L-1s, and O-1s in 2016, before the 2017 End of Deference Policy Memorandum, and 2019, after the policy memorandum:

(See here). Although a number of factors may have contributed to the surge in RFEs during this time, there is no question that the 2017 End of Deference Policy Memorandum played a significant role in the uptick in RFEs issued by USCIS. Now that USCIS has rescinded that policy, employers and foreign nationals filing extension petitions should, in theory, expect these numbers to begin to drop.

With that said, we will have to wait and see how USICS officers apply this resurrection of deference. Although the New Deference Policy instructs officers to give greater weight to prior approvals, it also gives the officer discretion not to give any deference when there was a "material error" during the first adjudication, or there has been a "material change in circumstances or eligibility." Thus, for example, if the officer decides that an L-1A petition should never have been approved because, in his/her mind, the position is not managerial, then the officer could conclude that the original officer made a "material error" or that there has been a "material change in eligibility" and deny the petition for that reason. At least this New Deference Policy is a definite step in the right direction to streamline adjudications to some degree.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.