We can breathe a sigh of relief. USCIS has reinstated its “deference” policy. This means that when officers adjudicate petitions and applications for extension of status, they should give deference to prior determinations. This makes for swifter and more efficient adjudication and saves government and customer resources. The extension request must involve the same petitioner and beneficiary and the same facts, however. For example, if an employer files a second H-1B petition to extend status for its existing employee in the same job, USCIS should give deference to its prior approval, even though a different officer is making the decision. If, however, the extension request is filed by a new employer, or for a new position, USCIS will review the petition anew, without deference to any prior approvals granted for that employer or that foreign national employee.
Historically, in 2004, USCIS issued guidance of the same kind, and exercised deference in the adjudication of qualifying extension requests. But in 2017, USCIS rescinded the deference policy. This wreaked havoc on the adjudication process and resulted in unnecessary issuance of requests for evidence and denials. It also caused U.S. employers to incur additional unnecessary expenses. Now, in accordance with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, USCIS adjudicators will exercise deference, barring any material errors, changes of circumstances or eligibility, or new information that might impact the eligibility of any parties involved. Affording deference to prior approvals will help to remove unnecessary impediments to immigration benefits and will ensure fair adjudications of these benefits for U.S. employers and their foreign workers.