Apr 27 2021

USCIS Reinstates Deference to Prior Nonimmigrant Petition Adjudications

United States

At a glance

  • U.S. Citizenship and Immigration Services (USCIS) has rescinded a 2017 Trump-era policy memo that prohibited USCIS officers from deferring to prior petition approvals, even where there was no change in facts or indication of error.
  • The agency has reinstated principles from its 2004 adjudication policy, permitting USCIS officers to defer to prior approvals when adjudicating petition extensions as long as the parties and facts remain the same, with no material changes or errors.
  • The policy reversal could reduce the number of petition-based RFEs and decrease processing times of extension requests. However, it remains to be seen how the agency will implement the new policy.

A closer look

U.S. Citizenship and Immigration Services (USCIS) has reinstated its guidance to immigration officers to defer to prior nonimmigrant petition approvals when adjudicating petition extension requests, if the facts and parties remain the same. The agency announced today that it has rescinded its 2017 policy memorandum, issued under the Trump Administration, that reversed a longstanding policy of deferring to prior adjudications. 

The deference policy

Under the reinstated deference policy, which is effective immediately, officers are directed to generally defer to prior approvals in immigration benefit petitions involving the same parties and facts. Officers may not defer to a prior approval where there are material changes or where new material information is available that undermines eligibility, which includes publicly available information affecting eligibility for the benefit. The policy will also not apply if there was material error in the prior adjudication. 

In addition, the new guidance requires officers to obtain supervisory approval before deviating from a prior approval on the same facts -- a significant departure from prior policy and practice. USCIS also affirms that the agency will defer to USCIS determinations only; it will give consideration to determinations by other agencies.

This policy change follows President Biden’s Executive Order 14012 (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans), which directs immigration agencies to identify barriers that impede access to immigration benefits and fair, efficient adjudications.  

What it means

While USCIS is again requiring deference to prior decisions on extensions requests where no material change has occurred, the practical impact of the policy change will only be seen through USCIS adjudications. After the 2017 Trump-era policy memo dispensing with the more permissive deference policy, requests for evidence (RFE) increased significantly, even on petitions with multiple prior approvals on the same facts. Reverting back to the prior policy should decrease the number of extension RFEs and reduce their processing times; however, impact on adjudication trends will depend on how USCIS officers implement the policy in practice. 

Fragomen closely monitors adjudication outcomes and will report on the impact of the reinstated deference policy as trends emerge.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.