For employers and foreign nationals navigating the U.S. immigration system, receiving a petition approval from USCIS can feel like crossing the finish line. But what happens when it’s time to file for an extension or renewal? Is a prior approval enough?
– Not always.
USCIS has clarified that while prior approvals can carry weight, they don’t eliminate the need to prove eligibility again. Each filing is treated as a separate proceeding.
What Does “Deference to Prior Approval” Mean?
USCIS policy generally allows adjudicators to defer to their agency’s earlier determinations when reviewing a new filing involving:
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The same parties
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The same facts
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The same nonimmigrant classification
This typically comes into play during an extension or amendment request. The idea is to streamline cases where nothing material has changed.
But that deference isn’t guaranteed.
When USCIS Won’t Defer to a Prior Approval
There are specific scenarios where USCIS will decline to rely on a past approval, even if it involved the same employer and employee. These include:
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Material Error in the Previous Approval – If the earlier decision was approved based on an error, whether in fact or law, USCIS is not required to follow it.
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Material Change in Circumstances or Eligibility – A change in job duties, location, salary, or the legal requirements for a visa category can all lead to re-evaluation.
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New Material Information – Any new, relevant information that could impact eligibility may prompt USCIS to take a fresh look, regardless of what was approved before.
The Petitioner Still Bears the Burden of Proof
Even in cases where USCIS might consider deferring to a prior approval, the burden remains with the petitioner to show eligibility. This includes submitting:
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Current supporting documents
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Evidence of maintained status (when required)
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Proof that no material changes have occurred
The law is clear: immigration benefits cannot be granted based solely on precedent. The current application must stand on its own.
This is reinforced in case law and statute, including Matter of Church Scientology International, where the agency emphasized that it is not bound by prior decisions if eligibility is not clearly established in the new petition.
What This Means for Employers and Applicants
It’s critical not to rely on prior approvals as a guarantee. Every petition, whether it’s an initial filing, an extension, or an amendment, needs a full review of eligibility and documentation. Don’t assume that what worked last time will be enough. Instead, approach each filing as if it’s the first, with up-to-date evidence and a clear demonstration that all requirements are met.
Final Thought
Deference can be helpful. However, USCIS reserves the right to question, review, and ultimately deny applications, even when there’s a history of approvals. Understanding when deference applies and doesn’t is key to avoiding unnecessary denials.
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