In a significantly beneficial and welcomed announcement, on April 27, 2021, USCIS issued a policy alert announcing that, beginning immediately, it will give deference to prior decisions when adjudicating requests for an extension of stay, so long as the request involves the same parties and facts. In its announcement, USCIS also affirmed that it considers (but does not defer to) prior eligibility decisions made by other government agencies, including the U.S. Department of State.
What will the USCIS policy be moving forward, and what does this mean for me?
The USCIS announcement is a significant and positive change that could benefit many people visiting the United States who want to extend their status. Beginning on April 27, 2021, if an applicant has previously been granted an extension of status and wants to apply for an additional extension, USCIS will defer to the prior approved request when deciding whether the later extension should be granted. This significantly improves the chances of approval for those who were approved for an extension before since, if the limitations noted below do not apply, the applicant should be granted the requested extension.
Are there any limitations to the new policy?
Yes, it is important to note that there are limitations to the new policy. USCIS will only defer to past decisions if the parties (meaning the petitioner and beneficiary) and the facts are the same as they were in the prior extension request. Deference will not be granted if the parties or facts have changed since the prior request, if there was a material error in the application, if a material change in circumstances or eligibility has occurred since the last application, or if there is new information that negatively impacts the eligibility of the person seeking the extension.
Did the USCIS announcement include any other changes?
Yes, in its April 27 announcement, USCIS also confirmed that it considers, but does not defer to, decisions other federal government agencies have made regarding an individual’s eligibility. This means, for example, that if the U.S. Department of State previously approved an applicant’s petition, USCIS would take this into account when making its own determination.
What was the prior USCIS policy, and why the change now?
The new policy announced by USCIS on April 27 is actually largely a return to the government’s policy that was in effect between 2004 and 2017.
In 2004, USCIS implemented a policy of deferring to prior decisions that was intended to discourage USCIS adjudicators from routinely questioning prior determinations where there was no material change in the underlying facts. In October 2017, the Trump administration rescinded the 2004 policy and instead declared that adjudicators are not “constrained by any prior petition approval.” At the time, we published an update on Trump’s rescission of the longstanding policy of deference, and a follow-up article on the topic.
The April 27 announcement follows President Biden’s executive order titled Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, signed on February 2, 2021, which directed the Secretary of Homeland Security to “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers, as appropriate and consistent with applicable law.” By correcting the Trump administration’s policy and reverting to a prior, longstanding policy of deference, this announcement is a step in the right direction.
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