New USCIS rule confirms deference to prior determinations in nonimmigrant petitions

Under the H-1B Modernization and Nonimmigrant Program Improvement Rule published on December 18, 2024, the Department of Homeland Security (DHS) codified its current deference policy for nonimmigrant petitions. Under U.S. Citizenship & Immigration Services (USCIS) policy, when a nonimmigrant petition involves the same parties and the same underlying facts, USCIS adjudicators should generally defer to a prior USCIS determination (usually an approval), unless a material error in the prior approval is discovered, or another material change impacts the petitioner or beneficiary’s eligibility for status.

USCIS Background Information

For some background on this issue, in 2004, USCIS issued a policy memorandum (Deference Memo) stating that where a nonimmigrant petition involves the same parties and the same underlying facts, its adjudicators should generally defer to a prior USCIS determination, absent material error or other material change impacting eligibility.

However, in 2017, the Trump administration rescinded the 2004 USCIS Deference Memo. This  resulted in significant delays in adjudications, arbitrary denials and unnecessary and cumbersome requests for additional evidence on pending nonimmigrant petitions throughout the first Trump administration. These problems plagued petitions by employers that had previously been considered straightforward extensions of status for existing employees. The lack of predictability in processing extensions for existing and highly valued foreign national employees was a source of considerable stress and uncertainty for U.S. employers, as well as their employees and employees’ families.

In 2021, the Biden administration reinstated the USCIS Deference Memo and included it in the USCIS Policy Manual.

With the publication of the H-1B Modernization and Nonimmigrant Program Improvement Rule, the agency has codified the USCIS deference policy, which will make it much more difficult to retract or rescind under the incoming Trump administration.

The publication of this rule is welcome news to employers and employees on nonimmigrant statuses in the United States (E, H, L, O, P, Q, R, TN, etc.) who were concerned that the incoming Trump administration would again rescind the USCIS deference memo after taking office.

While the incoming administration may decide to attempt to rescind the regulation either through notice and comment or by asking Congress to utilize the Congressional Review Act (CRA) to vote by simple majority resolution to vacate the rule. It is unclear whether rescinding this rule will be a priority for the incoming administration.

For more information on nonimmigrant petition adjudications or other immigration matters, please contact Kolko & Casey, P.C.