News & Insights

USCIS Restores Its 2004 Deference Policy

More great news coming from the Biden Administration.

In 2004 USCIS released a policy which stated that officers should generally defer to prior determinations when making a decision on an extension petition.  However, the Trump administration rescinded this policy which created havoc, especially in the H-1B community.  It meant that individuals who had previously been approved for H-1B were facing RFEs, NOIDs and denials where USCIS were claiming that the beneficiary’s position did not qualify as a specialty occupation, despite prior approvals to the contrary.

However, on April 27, 2021, USCIS released a policy stating that it had issued policy guidance in its policy manual, essentially revoking the 2017 guidance and restoring the 2004 guidance.

This is great news because it means that beneficiaries whose positions were previously approved as H-1B specialty occupations, should receive deference unless there was:

  • There was a material error involved with previous approval(s);
  • There has been a material change in circumstances or eligibility requirements; or
  • There is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.

This means in the majority of cases prior determinations should be given deference unless the officer had clearly made an erroneous decision.

In view of this new policy guidance, we expect to see a much higher rate of approvals for H-1Bs as well as other visa categories.  This should also result in faster processing times as officers will not have to completely re-adjudicate cases and can defer to prior approvals.

For further information regarding the above please feel free to reach out to PLG Partner Chris Prescott at cprescott@patellegal.com.

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