USCIS Rescinds Deference Policy for Prior Approvals


Late yesterday afternoon, USCIS issued a policy memorandum that rescinds a long-standing policy of giving deference to prior USCIS decisions for certain nonimmigrant visa petitions.

In 2004, USCIS issued a policy memorandum that directed USCIS officers to give deference to a prior USCIS approval when the underlying facts of the nonimmigrant visa petition remain the same. The only exceptions were when USCIS determined it made a material error in approving the previous petition, a substantial change in circumstances had occurred, or new material information arose adversely impacting eligibility. The 2004 memorandum required USCIS to clearly articulate the exception in a Request for Evidence or denial if it did not give deference to the prior approval. USCIS reaffirmed its policy in August 2015, when it issued its final L-1B Adjudications Policy Memorandum.

In explaining the rescission of the 2004 policy, USCIS claimed the prior policy is "impractical and costly to implement" and improperly shifted the burden of proof from the petitioner to USCIS by requiring USCIS to obtain a separate record and compare it to the new petition. USCIS' e-mail announcement to stakeholders, however, quoted USCIS Director L. Francis Cissna as saying, "This updated guidance provides clear direction to help advance policies that protect the interests of U.S. workers."

The practical effect of this policy change is that USCIS officers are now instructed to apply the same level of scrutiny to all nonimmigrant visa petitions, even when the underlying facts are unchanged from a previously approved petition. To this end, USCIS' policy memorandum advises adjudicating officers to "not feel constrained in requesting additional documentation in the course of adjudicating a petition extension".

If you have any questions, please contact your Goel & Anderson attorney.