A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Wednesday, May 5, 2021

USCIS Reverts to "Deference to Prior Decisions" Standard on Petition Extensions

In another change in accordance with President Biden's overhaul of the immigration system, USCIS will revert to a 2004 policy guidance when adjudicating requests to extend an approved petition or application. The guidance was rescinded in 2017 under the Trump administration but has been restored as of April 24, 2021. 

The applications that are involved are mostly work-related petitions that can be extended (H-1B, L-1A) and dependent status applications (H-4, L-2). 

Deference to Prior Decisions
The 2004 guidance specifies that an officer must "defer" to the decision made on the initial petition when determining eligibility to extend that petition. If the facts of the case remain the same, then the officer should respect the decision made on the initial petition. This policy makes extending status much easier. An H-1B petition, for example, with no changes in the job involved, the employer, and other such factors, should not have a different decision made based solely on these unchanged facts. 

Requests for Evidence May Still Be Issued
However, this definitely does not mean an extension is guaranteed or that a Request for Evidence (RFE) will not be issued. Other factors are taken into account, such as if there was a wrong interpretation of the facts and relevant statute in the first decision (Ex. An H-1B petition being approved despite the beneficiary having the wrong degree). New facts in the extension petition can also affect eligibility of the petitioner or beneficiary. 
USCIS officers also won't defer to decisions made by other U.S. government agencies, though they will factor them into their own decision. 

Overall, many nonimmigrant visa holders will have less issues when applying to extend their status, provided that the facts supporting their eligibility remain the same.

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