On Apr 28 2021

Client Alert: Biden Updates Policy Guidance to Grant Deference in Another Trump Reversal

The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.

On April 27, 2021, U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance, instructing adjudicators to grant deference to prior determinations when adjudicating petition extension requests involving the same parties and facts as the initial petition. This policy manual update provides the following guidance:  

  • Clarifies that USCIS gives deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change in circumstances or eligibility, or new material information that adversely impacts the petitioner’s, applicant’s, or beneficiary’s eligibility.
  • Affirms that USCIS considers, but does not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies; that officers make determinations on the evidence of record in the petition or application under adjudication.

This policy update effectively restores previous, long-standing USCIS guidance regarding deference that was put in place in 2004. The 2004 guidance had been rescinded by USCIS in 2017.

The impact of this updated guidance will likely help relieve the long backlog that has many immigration petitions and applications delayed.

USCIS has noted that the updated guidance concerning the USCIS deference policy is following President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, which instructs the Department of Homeland Security to “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits”.

Please contact your Klasko attorney if you have any questions about this Client Alert.


The material contained in this alert does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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