Good News for Employers Seeking to Renew Employee Visa Petitions
On April 27, 2021, USCIS issued guidance to its officers instructing them to give deference to prior USCIS determinations when adjudicating petitions and applications involving the same facts and parties. This guidance reinstates USCIS’ 2004 policy memorandum memorializing a deference policy that was rescinded in 2017. The deference policy instructed officers to defer to the prior decisions of the service unless there is a material change of law, new facts, or material error in the adjudication of the prior petition. Under the newly reinstated policy, employers should have comfort that when seeking to renew a visa petition for an employee, where the service previously granted the visa, absent new facts, a change of law, or material error in the prior decision, the officer should approve the renewal petition.
Before the 2017 policy change rescinding deference, H-1B denial rate ranged between 5% and 8%. In 2018, one out of four or 25%, H-1B petitions were denied. Reinstitution of deference brings a sense of certainty to employers seeking to renew a petition for an H-1B or L-1 worker. Employers can now expect USCIS to honor its prior decisions and need not worry about the costs (both human and monetary) or the need to relocate or lose the services of employees while the USCIS reviews a previously approved petition as if it had never seen it before.