USCIS Issues Policy Guidance on Deference to Previous Decisions

On Tuesday April 27, 2021, U.S. Citizenship and Immigration Services (USCIS) announced new policy guidance for the USCIS Policy Manual regarding deference to previous decisions. In 2004, USCIS issued guidance directing officers to generally defer to prior determinations of eligibility when adjudicating petition extensions. However, in 2017 USCIS rescinded the 2004 guidance, meaning that the approval of previous petitions was not considered when reviewing an extension.

The new guidance from USCIS reverts to the guidance issued in 2004, instructing officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts as the initial petition or application. This holds true unless there was was a material error, material change in circumstances or in eligibility, or new material information that adversely impacts the petitioner’s, applicant’s, or beneficiary’s eligibility. The new guidance also affirms that USCIS officers should consider previous eligibility determinations on petitions or applications made by other U.S. government agencies, but that USCIS does not necessarily need to defer to the previous decision in those cases. The new guidance is effective immediately.

According to the new guidance, “Officers are not bound to approve subsequent petitions or applications…strictly because of a prior approval…USCIS decides each matter according to the evidence of record on a case-by-case basis. However…any deviation requires close consideration of the previous approval by USCIS. When adjudicating a subsequent petition or application involving the same parties (for example, petitioner and beneficiary) and the same underlying facts, officers should defer to a prior determination that the beneficiary or applicant is eligible for the nonimmigrant classification sought, where appropriate.”

This update comes after President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, which directs the secretary of homeland security to identify barriers impeding access to immigration benefits and fair, efficient adjudications. Reverting to the prior deference policy undoubtedly helps achieve the goal of a more just and efficient immigration system.

Serotte Reich will continue to provide updates, as the status of the immigration systems continues to shift frequently. If you need assistance or advisement regarding an immigration petition renewal or extension, please contact us at 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

Biden Issues Proclamation Ending Discriminatory Muslim Travel Bans

On his first day in office, January 20, President Biden signed into effect a Presidential Proclamation ending the discriminatory travel bans issued by former President Trump. President Biden’s proclamation, entitled “Ending Discriminatory Bans on Entry to the United States,” repeals Trump’s Presidential Proclamations 9645, 9723, and 9983, as well as his Executive Order 13780. Trump’s proclamations and executive order had restricted entry into the U.S. by certain nonimmigrants and immigrants from Arab, Muslim-majority and African-majority countries, including Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.

President Biden’s proclamation stresses the centrality of religious freedom and tolerance as the foundation upon which the United States was built. In the proclamation he calls President Trump’s proclamations and executive order “a stain on our national conscience…inconsistent with our long history of welcoming people of all faiths and no faith at all. [The proclamations] have separated loved ones, inflicting pain that will ripple for years to come.  They are just plain wrong.” As of January 2019, the Cato Institute reports that over 9,000 spouses and minor children of U.S. Citizens have been barred as a result of Trump’s bans.

Along with repealing Trump’s travel bans, President Biden’s proclamation directs that all embassies and consulates cease applying Trump’s bans and resume processing of all visas immediately. Additionally, the Department of State (DOS) must undertake a review and provide a proposal to ensure that individuals whose immigrant visa applications were denied because of Trump’s bans have a pathway to reconsideration of their applications. President Biden’s proclamation requires that the DOS develop a plan to expedite consideration of those visa applications. At the same time, Covid-19 continues to affect U.S. visa processing at consulates and embassies all over the world.

President Biden’s proclamation is the first of many to come under the new administration that will hopefully impact immigration for the better.

If you need assistance or advisement regarding an immigration matter that will be affected by this new proclamation, please contact us at 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

Updated DS-160 requires visa applicants’ social media information

Do you have a social media presence? If you’re applying for a U.S. nonimmigrant visa, the Department of State wants to know—and they want details.

Completing the DS-160 (Online Nonimmigrant Visa Application) is the first step for applying for a nonimmigrant visa through a U.S. consulate or embassy. Applicants are required to fill out the online form on the Department of State’s Consular Electronic Application Center website. If the DS-160 is not satisfactorily completed and submitted, it is not possible to move forward with any requisite next steps, such as making an appointment for an interview.

On May 31, 2019, a new subsection entitled “Social Media” appeared on the Department of State’s DS-160 online form. The question is, “Do you have a social media presence?” Instructions are provided:

“Select from the list below each social media platform you have used within the last five years. In the space next to the platform’s name, enter the username or handle you have used on that platform. Please do not provide your passwords. If you have used more than one platform or more than one username or handle on a single platform, click the ‘Add Another’ button to list each one separately. If you have not used any of the listed social media platforms in the last five years, select ‘None.’”

The drop-down menu that follows includes 20 social media platforms, ranging from ubiquitous to relatively obscure: ASK.FM, Douban, Facebook, Flickr, Google+, Instagram, LinkedIn, MySpace, Pinterest, Qzone (QQ), Reddit, Sina Weibo, Tencent Weibo, Tumblr, Twitter, Twoo, Vine, Vkontakte (VK), Youku, and YouTube.

A response is required and the user’s ability to complete and submit the form is disabled until one is provided; there is no way to opt out completely. Should an applicant falsely select “None,” the immigration consequences could be serious, depending on how the Consulate/Embassy classifies the omission.

Some of the social media platforms may sound unfamiliar but are popular with international audiences.  Five of the platforms are widely used in China, including Douban, Qzone (QQ), Sina Weibo, Tencent Weibo and Youku. Vkontakte (VK) is an online social media and social networking service based in Russia.

A recent announcement was posted on the Department of State’s Consular Electronic Application Center website letting users know that the DS-160 page would be undergoing maintenance on Thursday, May 30, expected to be completed between 4 and 11pm. Apologies were offered to any visa applicants experiencing technical difficulties with their DS-160 during that time. The question regarding social media was not included on the online form prior to May 30.

Serotte Reich is continuing to monitor any new developments or changes to the nonimmigrant visa process. If you need assistance with your application, please contact our office.

Above is a screenshot of the DS-160 online form’s new question about social media accounts.