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USCIS Issues Policy Guidance on Deference to Previous Decisions

Finally some great news that immigration practitioners everywhere, particularly those focused on business immigration, were hoping for. USCIS announced this morning their reversion back to their prior policy on deference, what is commonly known as the deference memo. This memo instructs USCIS officers reviewing extension requests to give deference to the prior approval if the extension request involves the same parties and facts as the initial petition. Only situations involving material error, material change, or new material facts will not get the benefit of deference.


Part of the Trump administration’s war on all things immigration included USCIS rescinding the deference memo in October 2017, which gave the agency wide breadth to apply unreasonable scrutiny and ultimately issue RFEs/denials to visa renewals, even though such individuals had been granted approvals in the past (sometimes many times). It also contributed significantly to the ballooning of processing times, as each renewal petition/application had to be adjudicated afresh, with no consideration being given to prior approvals. As Trump built up the invisible wall brick-by-brick, we hope that Biden continues dismantling it in the same fashion.


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USCIS is issuing policy guidance in the USCIS Policy Manual instructing officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change, or new material facts.

With this update, USCIS is reverting in substance to prior long-standing guidance (PDF, 134.52 KB) issued in 2004, which directed officers to generally defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as the initial petition or application. In 2017, USCIS rescinded (PDF, 98.11 KB) the 2004 guidance.

This update is in accordance with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The executive order directs the secretary of homeland security to identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits. Affording deference to prior approvals involving the same parties promotes efficient and fair adjudication of immigration benefits.

For more information, see the policy guidance (PDF, 301.48 KB).



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