EAH Immigration Blog

USCIS to Defer to Prior Determinations of Eligibility in Requests for Petition Extensions

For more than a dozen years, USCIS directed its officers to generally defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as an initial petition or application. The deference policy was most often exercised in the context of extensions of Form I-129 work-related visa petitions. In practice, this meant that if the facts and circumstances of the individual’s work remained the same, the extension would be approved, thus providing employers and their foreign national personnel with predictability in the workplace. However, in 2017, USCIS rescinded this practice, and directed officers “to not be constrained by any prior petition approval” or “constrained in requesting additional documentation in the course of adjudicating a petition extension” because, it noted, “the deference policy may, in some cases, have had the effect of limiting the ability of adjudicators to conduct a thorough review of the facts and assessment of eligibility in each case” and “ likely had the unintended consequence of officers not discovering material errors in prior adjudications.” Basically, USCIS was trying to find new ways to deny cases.

Not anymore. USCIS is reverting in substance to its prior long-standing policy of deference consistent with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. Theis 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.

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