DHS Withdraws Proposed Biometrics Rule

On May 7, 2021, the Department of Homeland Security (DHS) announced its decision to withdraw a proposed rule concerning the use and collection of biometrics by U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE). The rule, originally proposed on September 11, 2020, would have expanded department authorities and requirements for collecting biometrics by removing age restrictions; by requiring submission of biometrics for every applicant, petitioner, sponsor, beneficiary, or other individual filing for or associated with any immigration or naturalization benefit or request unless DHS waived or exempted the biometrics requirement; by codifying the authority to use or require DNA test results; and by authorizing the use of additional types of biometric modalities.

The withdrawal of the proposed rule is consistent with President Biden’s Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, which prioritizes reducing barriers and undue burdens in the immigration system. DHS maintains that it will continue to require submission of biometrics where appropriate and remains committed to national security, identity management, fraud prevention and program integrity.

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 matter, please contact us at 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

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 However, in 2017 USCIS rescinded the 2004 guidance, meaning that the approval of previous petitions was not considered when reviewing an extension.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.