On April 27th, USCIS issued updated policy guidance instructing officers to give deference to prior determinations when adjudicating extension requests, essentially reinstating long-standing ‘prior deference’ policy that was established in 2004 and later rescinded in 2017. Effective immediately, USCIS officers are instructed to give deference to prior determinations when adjudicating employment-based extension requests involving the same parties and facts, provided that there weren’t any material errors or changes in circumstances or eligibility, or new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.
In visa petition proceedings, the burden of proof is on the petitioner to establish eligibility for the benefit sought by a preponderance of the evidence. Matter of Bratigan, 11 I&N Dec. 493 (BIA 1966). A preponderance of the evidence means the evidence suggests the applicant’s claim is “probably true.” Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). The original 2004 USCIS memorandum – titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” – instructed officers to respect the findings of a previously-approved petition, so long as the key elements were unchanged and there was no evidence of material error or fraud related to the prior approval(s). In other words, deference policy directed officers to generally agree to follow to prior determinations of eligibility where extension requests involve the same parties and facts as the initial petition. This policy also provided that USCIS will consider (but not defer to) previous determinations by other U.S. government agencies, such as the U.S. Department of State, etc.
On October 23, 2017, USCIS rescinded its deference policy following President Donald Trump’s “Buy American, Hire American” executive order, which tasked the Secretary of State, Attorney General, Secretary of Labor, and the Secretary of Homeland Security with reviewing employment-based foreign worker programs and recommending changes “as soon as practicable.” CIS announced that it would no longer provide deference to prior determinations of eligibility and USCIS officers were prohibited from conceding to prior petition approvals even where there had been multiple approvals, and no errors or changes in material facts. The 2017 policy memo conferred that a fundamental issue with the 2004 memorandum was that it appeared to shift the burden of proof on USCIS and clarified that the burden remains on the petitioner even where an extension of status is sought. In rescinding the previous policy, USCIS instructed officers to apply the same level of scrutiny to initial petitions and extension requests for nearly all nonimmigrant visa categories. Thereafter, USCIS released statistics reflecting a significant increase in requests for evidence (RFEs) and reported an increase in overall volume and backlog of cases due to policy changes. Across the board, there was a noticeable increase in the issuance of RFEs, even on petitions with multiple prior approvals based on the same facts.
President Joe Biden’s February 2nd executive order (“Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans“) directed the Secretaries of the Department of State and Homeland Security and the Attorney General to “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers.” This updated policy guidance effectively supersedes the 2004 policy guidance and represents a step towards more efficient adjudication of immigration benefits.
While we have yet to witness the actual effects of this policy reversal on adjudication trends, we are optimistic that it could result in a decrease in RFEs and processing times for extension requests where the parties and facts remain the same. W&O’ attorneys diligently follow USCIS updates and adjudication outcomes and are keen on sharing this (and any other) exciting news with our new and existing clients. We have offices in Orange, Riverside, San Diego, Fresno, Sacramento, and San Francisco, California; Salt Lake City and Orem, Utah; and Boise, Idaho. Please contact us to schedule your free consultation today.
ABOUT THE AUTHOR(S)
NANCY VO – ATTORNEY
Nancy Vo is an Associate Attorney at Wilner & O’Reilly. She graduated Magna Cum Laude from Whittier Law School. While at Whittier. She was an editor on Whittier Law Review and earned a CALI award in Legal Writing. She earned a Bachelor’s Degree in Political Science and Public Law from the University of California, San Diego. She works in the firm’s employment-based practice where she focuses on non-immigrant applications for Aliens of Extraordinary Ability, L-1 intra-company transfer visas for executives and managers, and E-2 treaty visas. Ms. Vo grew up in Los Angeles with three older sisters and parents who were all refugees from Vietnam. She is a first-generation Vietnamese American and the first in her family to enter the legal field.
RICHARD WILNER – FOUNDING PARTNER
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.