USCIS reinstates deference policy for extensions of status

U.S. Citizenship and Immigration Services (USCIS) announced Tuesday that it would reinstate guidance that directs officers to generally give deference to prior USCIS decisions when considering extension requests involving the same parties and facts.

Key Points:  

• The new policy reinstates in substance USCIS’s 2004 guidance on deference that the Trump administration reversed in 2017. The new guidance instructs officers to give deference to past USCIS decisions when adjudicating extension requests involving the same parties and facts except in cases of material error in the prior approval, material change in circumstances, or new material facts that impact eligibility.
• If an officer determines deference to a prior approval is not appropriate, the guidance requires them to acknowledge the previous approval(s) in the denial, Request for Evidence, or Notice of Intent to Deny; articulate the reason for not deferring to the previous determination; and provide the petitioner or applicant an opportunity to respond to the new information. The officer must also obtain supervisory approval before deviating from a prior approval in their final decision.
• The new guidance also affirms that USCIS will consider, but not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies.
• The new guidance will take immediate effect and will supersede all related prior guidance, including the 2017 memorandum.

Additional Information: USCIS issued the updated guidance in accordance with President Joe Biden’s Feb. 2 executive order, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” In its announcement, USCIS said affording deference would promote “efficient and fair adjudication of immigration benefits.” The new guidance can be read in its entirety here.

BAL’s Government Strategies team is hosting a webinar on Thursday, April 29, on the latest developments in U.S. immigration, including the impact of today’s announcement from USCIS.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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