Sanity and Common Sense are returning to USCIS adjudications of Non-Immigrant Petition Extensions.

In 2004, USCIS issued a “Deference Policy” which wisely provided guidance to adjudicators that a prior determination of eligibility should be given deference if there was no material change in the underlying facts. This policy is mainly applicable to non-immigrant business petitions such as a professional visa or a petition for a multinational manager/executive.  For the professional visa (H-1B), an applicant must prove that the job offered requires at least a bachelor’s degree and that the applicant has a relevant bachelor’s degree. The visa is issued for 3 years and may be extended for another three years. So, the policy would come into play for the extension. Assuming that in the initial approval no material error was made in the determination that the applicant has the relevant degree, then the renewal should result in a decision that the degree was still relevant.  Likewise for a petition for a high-level manager or executive of a multi-national business (L-1A), if the first petition determined that the position offered was managerial or executive and the position is the same for the renewal, then the petition for extension should defer to the prior approval and find that the position is still managerial or executive. This policy made sense. There was no good reason to create extra work for USCIS and uncertainly for our businesses. 

The deference policy provided some degree of predictability for businesses and their employees but was rescinded in 2017 as part of the Trump administration’s attack on legal immigration. The result was more work for USCIS and a great deal of anguish and concern for businesses that need some degree of predictability. One of the reasons that there have been significant delays in processing with USCIS is the rescission of this policy which required additional unnecessary work for USCIS not to mention additional work for the U.S. employer. Thankfully, the deference policy was restored on April 27th. This will be good for employers, their employees and will hopefully speed up determinations.

Linda M Kaplan