On April 27, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced that it was reinstating its guidance to immigration officers to defer to prior nonimmigrant petition approvals when adjudicating requests for extension of stay that request continuation of employment without change. While the reinstated policy directs USCIS officers to defer to prior approvals in such circumstances, it does specifically allow re-adjudication in cases where petitions request amendments of stay, changes in employment, or otherwise present new material facts, as well as in cases of material error. In bringing back this policy, USCIS has rescinded its 2017 policy memorandum, which reversed this longstanding policy.

The reinstatement of this prior policy, initially issued in 2004, was announced by USCIS on April 27, 2021, and became effective immediately. This reinstatement is implemented consistently with President Biden’s Feb. 2, 2021 Executive Order, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.”

Pursuant to this reinstated policy, where USCIS determines that it will not accord deference to its prior approval, reason for lack of deference must be articulated in a request for evidence or notice of intent to deny, and an opportunity afforded to the petitioner or applicant to respond. Pursuant to this policy, officers must obtain supervisory approval in cases where they seek to decline to defer to prior approvals in cases with no new material facts. With this policy back in place, USCIS may well reduce the number of extension-of-stay requests for evidence, which will in turn help with reduction of processing times.