In 2017, the Trump Administration created a policy whereby an immigrant who was applying for an extension of stay in the United States under their current status needed to have their original petition re-adjudicated. In other words, if an immigrant had an approved I-140 petition, but was requesting an extension of stay under their approved visa, the USCIS would have to go back to the original petition and check again to make sure the underlying petition did not involve any cases of fraud or lying on the application.

Deference in a legal setting means that officers will respect or more appropriately honor the original decision that was made and not revisit the underlying petition. The criticisms of the Trump era policy were that not giving deference to such underlying petitions was a predatory method of finding new ways to deport immigrants in the U.S., and also greatly slowing down the application process and creating backlogs for other immigrant applicants as well.

What it Means for Employers and Families

In addition, the Biden era move to re-instate the deference policy creates a smoother working life for immigrants in the U.S. on temporary visas and reduces the potential that an employer will suddenly have to scramble to find a new employee with a special skillset—which was a reality during the Trump years.

Overall, re-instating the deference policy creates efficiency at the USCIS adjudication level, but also for economic growth given that working immigrants will have the benefit of the doubt with their existing petitions. The policy also gives breathing room for immigrant families and communities that applying for a visa extension would invalidate their existing petition.

Updated Policies

While an applicant will be given deference to a previously approved petition, it still does not mean that the applicant can be found inadmissible on their extension application. In other words, an applicant can have their extension request effectively denied, no longer on the basis of the existing petition, but on the basis that they have violated the terms of their visa. In addition, the officer who is presiding over an extension case must do one of the following:

  1. Provide the petitioner or applicant an opportunity to respond to any new information obtained during the extension process (via an RFE).
  2. Obtain supervisory approval before deviating from a prior approval.

To see the full notice, click here: https://www.uscis.gov/news/alerts/uscis-issues-policy-guidance-on-deference-to-previous-decisions

Keywords
USCIS Biden Administration Immigration Process