By Dev B. Viswanath, Esq.
Kicker: Fantastic News for the Stakeholders to H1B, L1, and extension requests in various visa types!
USCIS is issuing policy guidance in the USCIS Policy Manual instructing officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change, or new material facts. This is particularly helpful for all those companies and petitioning sponsors who got stuck in the Anti-Immigrant Trump Era of policies that made review of petitions De Novo (meaning from the beginning/new) and added additional scrutiny to make the standards tougher. We can recognize that a huge number of H1B and L1 visas were denied in 2018 and 2019 based on those policies.
With this update, USCIS is reverting in substance to prior long-standing guidance issued in 2004, which directed officers to generally defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as the initial petition or application. In 2017, USCIS rescinded the 2004 guidance. But with this reversion, we will hopefully see the fair and reasonable implementation of deference to previous approvals again. When the policy guidance was rescinded in 2017, USCIS began looking at each extension and renewal as if it was a brand new stand alone application. And then coupled with a higher standard of review, they began issuing denials and Request for Evidences at an alarming rate.
This update is in accordance with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The executive order directs the Secretary of Homeland Security to identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits. Affording deference to prior approvals involving the same parties promotes efficient and fair adjudication of immigration benefits. Since Secretary Mayorkas is very familiar with the inner workings of USCIS, being the previous Director of the Agency, he knows all too well how to fix many of the issues that were broken over the previous 4 years.
We applaud the Administration, The DHS, and the USCIS in their efforts to restore fairness, equity, and hopefully prosperity to the American people, to the hundreds of thousands of intending foreign national employees or intending employees, as well as the many companies who were significantly hurt because of the previously implemented policies.