In an October 23, 2017 Policy Memorandum, USCIS announced an end to earlier policies allowing an adjudicating officer to give deference to prior approved non-immigrant visa petitions (H-1Bs, L-1s, O-1s, etc.) Rescinding a 2004 Policy Memo allowing deference for extensions and amendments and a late 2015 memo dealing exclusively with L-1s, the new guidance indicates that each case must be viewed as requiring the petitioner to meet its burden of proof independently and without reference to prior USCIS approvals even on the same or similar facts.
The new Policy Memorandum can be found online at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017…. Interestingly, it lacks any indication of authorship – there is a “subject” line but no “From” annotation indicating a responsible agency official or executive position.
While disturbing, it’s uncertain that this will have a practical impact on H-1B amendment/extension adjudications – not because things won’t be bad in the future but rather because they are already bad.
Many practitioners haven’t seen a great deal in terms of the application of what the prior policy of “deference” supposedly allowed – more frequently, we’ve received inquiries ignoring the prior policy entirely and noting that each H-1B must be adjudicated on its own merits and that USCIS isn’t bound by prior adjudications.
The policy change simply codifies what we’ve been seeing in practice for some time: that USCIS won’t accept that a prior adjudication of approval from its own officers should carry any precedential value.
To the extent employers receiving negative adjudications can be convinced to pursue the matter further through appellate efforts, this does leave open an interesting argument: If USCIS doesn’t trust its own officers enough to give weight to their prior decisions in similar or identical cases, why should anyone else – let alone the courts – give individual USCIS determinations any weight?
Agency interpretations of statutes typically get the benefit of the doubt under a concept called “Chevron Deference” (from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.)- essentially, that an agency is understood to have competence in the area it regulates and so its interpretations get deference from the courts unless unreasonable.
But, can this be argued where even the agency itself doesn’t seem to trust its prior determinations?