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USCIS H1B, L1 Policy Change on Deference – Impacts 123K H1B filings per year

Yesterday, April 27th, 2021, USCIS issued a major policy guidance on “deference to prior determinations”. It changes the way USCIS officers adjudicate H1B, L1 extensions and other visa extensions applications. While this is not a totally new policy by Biden administration, it is essentially reversal of previous president Trump era policy that was put in place in 2017. In this article, we will review background, what it means for H1B, L1 visa holders and how many it impacts.

Before we get into what is deference and other details of the changes, let’s review the impact of the previous policy.

 Impact of Trump Policy on Deference in FY 2018, 2019

In October 2017, Trump administration removed the previous policy on deference  from 2004. As a result of that change, USCIS officers had to treat all petitions, including extensions, as new applications and do extra scrutiny. It increased the number of RFEs significantly and the overall processing times. It also impacted the total approvals.  See below RFE trend, based on data curated from USCIS I-129 processing data

USCIS H1B Petitions Data FY 2015 to 2021
USCIS H1B Petitions Data FY 2015 to 2021

What is the Impact of this Deference Policy Change?

In FY 2020, USCIS processed about 426,000 H1B Petitions and of them about 300,00 were for continued employment that were filed as cap exempt for extensions, amendments and transfers. In that, about 123,000 petitions were filed as H1B Extensions. Now, with this change, it will have positive impact on these 123,000 H1B petitions. See below screenshot with USCIS H1B processing report for you to get an idea.

H1B Petitions filings history FY 2016 to 2020
H1B Petitions filings history FY 2016 to 2020
H1B Petition Extension of Stay Statistics FY 2020
H1B Petition Extension of Stay Statistics FY 2020

Also, this includes L1 Visa (both L1A & L1B) extension petitions filed with USCIS as well.  L1 filings count is not as big of a number as H1B filings and likely less than 30,000.  The total L1 filings for FY 2020 were around 40,000, which included all petitions new and extensions.

What is “Deference to Prior Determinations” in context of USCIS Decisions?

In layman terms, “deference to prior determinations”, means that when USCIS officer is making a decision on a petition such as extension application and not much has changed in the petition and has same or similar job, same employer and most of the details related to extension petition are same as the previous H1B petition, then the USCIS officer will need to defer to the decision given previously.

What it means is that the previous approval decision given by an USCIS officer would be considered or given more weightage during the decision-making process of the current extension petition with same or similar facts.  The USCIS officer will not review the entire extension petition as if it were to be a new petition and go through everything, except in few cases.  

  The biggest advantage with the change in deference policy is that it reduces overhead on the USCIS officers to review everything again as if it were to be new petition. It decreases the overall processing time for H1B or L1 Extensions, there will be fewer RFEs issued, and fewer denials as well with the change.

What is change in Deference Policy from past to New Policy?

In October 2017, Trump administration removed the original deference policy guidance from 2004. Now, Biden administration is removing the change and putting back the original guidance from 2004 on Deference policy.  Below is the actual policy summary screenshot from 2004 that will be effective going forward from end of April 2021.

Deference Policy from 2004 USCIS
Deference Policy from 2004 USCIS

USCIS officers will not defer to or use previous decisions as a base in cases where there was an error done previously and there are any changes in eligibility requirements. Also, the USCIS officer must give explanation, if they do not defer to the previous decision. They also need to get the supervisor approval, if they choose to change the decision from past and not give deference.

This change in deference policy overall makes the process much more streamlined for extensions and less RFEs. Having said that, this policy change does not mean, the approvals will be much easier or you need to submit less paperwork. You still need to submit all paperwork and must be eligible. It is the discretion of USCIS officer to question and issue RFE, if they see anything wrong. Check the current policy on deference at USCIS Policy Manual and below screenshot on the actual guidance.

USCIS Current Policy on Extension of Petition Deference
USCIS Current Policy on Extension of Petition Deference

What do you think of the Policy Change on deference ? Share your thoughts in comments.

   

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2 Comments

  1. HI Kumar,
    Thank you for the detailed Note on USCIS policy change on deference. We could see increase in approval percentage from 2020-October, Does this mean this policy change is effective from October-2020?
    If Not, what is the effective date of this policy change? Are all petition extensions that are earlier filed but under Review will be considered under this change?

    Please share your expert comments…Thanks in advance..

    Reply
    • srini,
      Where do you see October 2020 is the effective date ? The policy is effective from April 27, 2021. Well, if they are filed before and not yet processed, they may apply the current ruling on deference. Again, this is not explicitly told by them, just a general pattern.

      Reply

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