USCIS Policy Restores Deference to Previous Decisions

USCIS issued a new policy guidance providing deference to previous USCIS decisions.

The new USCIS policy is a sensible, welcome return to the previous policy. It reduces the burden on USCIS resources, reduces processing times, and adds transparency and predictability to decisions.

Regarding deference to prior USCIS approvals, the new policy states:

When adjudicating a subsequent petition or application involving the same parties (for example, petitioner and beneficiary) and the same underlying facts, officers should defer to a prior determination that the beneficiary or applicant is eligible for the nonimmigrant classification sought, where appropriate.

However, the new policy also provides that officers should not defer where a material error is involved with previous approval, a material change in circumstances or eligibility requirements exists, or a new material information that adversely impacts the eligibility exists.

If an officer determines that deference to a prior approval is not appropriate, the policy requires the officer to acknowledge the previous approval in the denial, RFE or NOID. Further, the policy instructs the officer to articulate the reason for not deferring to the previous determination, thereby shifting the burden to the officer to articulate its reason and providing the petitioner or applicant an opportunity to respond to the new information.

The new deference policy generally restores the previous 2004 USCIS policy, which was rescinded under the Trump administration in 2017.

Reference: USCIS Policy Manual, Volume 1, Chapter 4, Section B.1. See here.