Officers at U.S. Citizenship and Immigration Services (USCIS) can once again rely on prior decisions when processing employment visa extension applications with substantially the same information as the initial petition or application.
The agency is reinstating its policy of giving deference to previous decisions, reversing a policy put in place by the Trump administration in 2017 that required officers to adjudicate extension requests as if they were new, a practice that led to more scrutiny and requests for evidence (RFEs).
The policy change, effective immediately, reinstates a 2004 policy of deferring to prior determinations of eligibility when extension requests involved the same parties and facts as the initial petition or application.
"This means that prior determinations made by USCIS will receive deference unless there was a material error, material change in circumstances or in eligibility, or new material information that would have an adverse impact on eligibility," said William Manning, an attorney in the White Plains, N.Y., office of Jackson Lewis.
Manning added that if an officer does not defer to a prior approval, he or she must:
- Acknowledge the previous approval in the denial, request for evidence, or notice of intent to deny.
- Articulate the reason for not deferring to the prior decision.
- Provide the petitioner or applicant an opportunity to respond to any new information.
- Obtain supervisory approval before deviating from a prior approval, which is a significant departure from previous practice.
RFEs increased significantly since the Trump administration rescinded the deference memo in October 2017, said Tahmina Watson, an immigration attorney and founder of Watson Immigration Law in Seattle. "The policy change gave the agency wide breadth to apply unreasonable scrutiny and ultimately issue RFEs and denials to visa renewals. It also contributed significantly to the ballooning of processing times, as each renewal petition or application had to be adjudicated afresh, with no consideration being given to prior approvals."
Manning added that the rescission of the deference policy led to uncertainty for both foreign national employees and their employers. "Even when circumstances were unchanged, employees and employers who may have worked together for years were suddenly confronted with the possibility that the rug might be pulled out from under their feet," he said. "The return of the deference policy, though not a complete safeguard against a denial, would restore a degree of predictability and consistency that is necessary for family security, the smooth flow of business and continuing economic growth."