USCIS Restores Deference to Prior Determination in Extensions

On 4/27/2021, USCIS issued policy guidance to restore the deference to prior determinations when adjudicating extension petitions.

In 2004, guidance was issued to direct the adjudicating officers to “generally defer to” prior determinations when reviewing extension petitions with the same facts by the same petitioner. This meant, for instance, when a company filed an H1B extension petition, the officer would generally grant approval if the employee’s position title, job duties, and company’s business remained the same.

However, in October 2017, USCIS rescinded the 2004 guidance and directed the officers not to defer to the prior determinations but to review each extension petition as a new petition. That’s why we have seen many RFEs on extension petitions since then. For example, we once had an L1B RFE requesting additional eligibility evidence from years ago before the employee was transferred to the US, even though such evidence was submitted and reviewed 3 years ago in the initial petition.

The current policy guidance, effective 4/27/2021, restores the 2004 guidance to give deference to prior determinations in extension petitions with “the same parties and facts unless there was a material error, material change in circumstances or in eligibility". We believe going forward there will be fewer RFEs on extension petitions, and it will be easier to obtain approvals to such petitions.