DHS Moves to End Deference on Extensions
DHS wants to end deference to prior approvals on extensions, which by its own estimate, means more RFEs but the same results,
Earlier this week, DHS proposed to remove 8 CFR 214.1(c)(5), the provision directing USCIS to defer to its own prior approval when adjudicating an extension involving the same parties and the same underlying facts.
Historically, deference lived in policy memoranda from 2004 until its rescission in October 2017, was reinstated in April 2021, and was codified by final rule effective January 17, 2025.
Codification changed the mechanics of undoing it. Guidance can be withdrawn overnight, as 2017 demonstrated. A regulation cannot. Removal requires notice and comment, a reasoned explanation, and a record that can support judicial review. Which is why this arrives as a proposed rule rather than a memorandum.
Note what the agency's own analysis shows. Comparing the 2017 to 2021 period against the years deference applied, DHS estimates that removal "may increase the RFE rate by 2.9 percentage points," roughly 6,044 additional RFEs annually. On outcomes, it applied the same method "to denial rates and found no corresponding change." More process, the same results, by the agency's own measure. In reality, immigration law practitioners can already envision a much higher rate of RFEs and denials.
Although the current regulation remains in force until a final rule issues, in practice, extension filings now draw a newly heightened level of scrutiny that is difficult to square with a regulation still on the books.
I encourage all interested parties to comment by November 13. In the meantime, we continue to build extension filings for our clients as standalone cases rather than cross-references to a prior approval.