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USCIS to Return to Policy Granting Deference to Previous Adjudications

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USCIS to Return to Policy Granting Deference to Previous Adjudications

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One of President Biden’s first executive orders was issued February 2nd, 2021, entitle “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.”  Its goals and directives reflected its title – to identify and remove barriers that impede access to immigration benefits.  Beyond requests for comments from the public on what barriers exist and need to be removed, we have not seen too much in the way of sweeping reform as a result of this order – that is until the announcement on April 27, 2021 that USCIS will be rescinding a Trump-era policy in 2017 wherein USCIS announced it would no longer be granting any deference to previously approved petitions.

Specifically, the new policy:

  • 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.
  • Affirms that USCIS considers, but does not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies; that officers make determinations on the evidence of record in the petition or application under adjudication.

This new policy would still permit USCIS officers to consider the facts of a new petition, and does not bind them to previous approvals, but it does mean that long time employees are less likely to suddenly be faced with an inscrutable denial, and hopefully means that burdensome requests for evidence on renewals or extensions will be reduced.  It also perhaps signals a shift in priorities in the agency in an attempt to bring it back to a benefit conferring agency after years of USCIS drifting towards becoming another immigration enforcement and fraud detection mechanism for the Department of Homeland Security.

And beyond all else, this policy makes sense.  Processing times have ballooned over the course of the COVID pandemic, with estimated processing times changing seemingly by the day.  As of April 27, at the California Service Center a form I-130 “Petition for Alien Relative,” an extremely commonly filed form, is estimated to take between 20.5 to 26.5 months for a U.S. citizen filing on behalf of a spouse, parent, or child, and 103 to 133.5 months for a U.S. citizen filing for their married son or daughter over 21.  While this form was chosen as an example, almost every form currently has estimated processing times months or years longer than historic processing times.  All applicants for immigration benefits are hurt by these delays.

By not requiring officers to completely re-adjudicate petitions filed solely to extend the status of an employee, a business owner, or an executive – with no material changes and no errors in the previous adjudication – perhaps USCIS will be able better allocate its resources and bring these crisis level processing times back down to something resembling normalcy.  Without having to reinvent the wheel on each filing, we can hope to see families reunited, businesses filling essential roles, and investments in the U.S. economy flourish.

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