-
Original Date Announced
October 23, 2017USCIS stops giving deference to previous petition determinations, including H-1B and L-1 extension requests, rescinding a 2004 memo. H-1B extension petitions are now reviewed with the same level of scrutiny as initial petitions. The "burden of proof" remains on the petitioner, even where extension of H-1B or L-1 status is sought. [ID #485]
USCIS Policy Memo (PM-602-0151): Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant StatusEffective Date
October 23, 2017Biden Administration Action: Revoked/Replaced
April 27, 2021Deference to Prior Determinations of Eligibility in Requests for Extensions of Nonimmigrant Status
This Biden administration policy revokes in its entirety the Trump-era policy identified in this entry.
On April 27, 2021, USCIS issued a policy memo addressing deference to prior determinations of eligibility by an officer when adjudicating a request for an extension of nonimmigrant status.
This memo generally restores the 2004 USCIS deference policy with updates. This guidance clarifies that USCIS gives deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change in circumstances or in eligibility, or new material information that adversely impacts the petitioner’s, applicant’s, or beneficiary’s eligibility.
View DocumentBiden Administration Action: Proposed Revocation/Replacement/Modification
October 23, 20232023.10.23 Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers
This policy expands on and clarifies the prior Biden administration action revoking the Trump administration policy.
On October 23, 2023, DHS issued a notice of proposed rulemaking revising H-1B requirements. The proposed changes would clarify that deference applies "if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination involving the same parties and underlying facts."
DHS hopes these changes will clarify when petitioners may expect adjudicators to exercise deference in reviewing their petitions, so petitioners will be more likely to submit necessary, relevant supporting evidence. Codifying when USCIS gives deference will also help ensure more consistent adjudications.
View DocumentCurrent Status
Not in effectMost Recent Action
October 23, 2023 Action: Proposed Revocation/Replacement/Modification 2023.10.23 Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant WorkersApril 27, 2021Acted on by Biden Administration
October 23, 2023Acted on by Biden Administration
Original Trump Policy Status
Status: Final/ActualTrump Administration Action: Agency DirectiveSubject Matter: Non-Immigrant Visas: Employment-BasedAgencies Affected: USCISPre Trump-Era Policies
-
April 23, 2004
"A prior determination by an adjudicator that the alien is eligible for the particular nonimmigrant classification sought should be given deference," according to an April 2004 memo from USCIS official William Yates.
The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity