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USCIS Issues Policy Guidance on Deference to Previous Decisions

Release Date 
04/27/2021

USCIS is issuing policy guidance in the USCIS Policy Manual instructing officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change, or new material facts.

With this update, USCIS is reverting in substance to prior long-standing guidance issued in 2004, which directed officers to generally defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as the initial petition or application. In 2017, USCIS rescinded the 2004 guidance.

This update is in accordance with President Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The executive order directs the secretary of homeland security to identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits. Affording deference to prior approvals involving the same parties promotes efficient and fair adjudication of immigration benefits.

For more information, see the policy guidance (PDF, 298.85 KB).


Last Reviewed/Updated:
04/27/2021


National Interest Exceptions for Certain Travelers from China, Iran, Brazil, South Africa, Schengen Area, United Kingdom, and Ireland


Last Updated: April 26, 2021
 

On April 26, 2021, the Secretary of State made a national interest determination regarding categories of travelers eligible for exceptions under Presidential Proclamations (PPs) 9984, 9992, and 10143 related to the spread of COVID-19.  As a result of this determination, together with national interest determinations already in place, travelers subject to these proclamations, due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland, who are seeking to provide vital support for critical infrastructure; journalists; students and certain academics covered by exchange visitor programs, may now qualify for a National Interest Exception (NIE).  Students and academics subject to these proclamations due to their presence in China, Iran, Brazil, or South Africa, may qualify for an NIE only if their academic program begins August 1, 2021 or later.  Qualified travelers who are applying for or have valid visas or ESTA authorization may travel to the United States following the procedures below, even as PPs 9984, 9992, and 10143 remain in effect.

Students with valid F-1 and M-1 visas intending to begin or continue an academic program commencing August 1, 2021 or later do not need to contact an embassy or consulate to seek an individual NIE to travel.  They may enter the United States no earlier than 30 days before the start of their academic studies.  Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for an NIE to travel.

Travelers in categories described above who have a valid visa in the appropriate class or who have a valid ESTA authorization for travel under the Visa Waiver Program and seek to travel for purposes consistent with ESTA authorization, should contact the nearest U.S. embassy or consulate before traveling, if they believe they may qualify for a National Interest Exception.  If a National Interest Exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.

The Department of State also continues to grant NIEs for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.  These travelers and any others who believe their travel to be in the United States’ national interest should also review the website of the nearest U.S. embassy or consulate for instruction on how to contact them.  

As with all NIEs for qualified travelers seeking to enter the United States under a Presidential Proclamation, if circumstances warrant, the Secretary of State may revise the national interest determination.


 Biden Administration’s Current U.S. Travel Restrictions and Revised National Interest Exception Criteria



Thursday, April 8, 2021



The ongoing COVID-19 pandemic has resulted in numerous presidential proclamations restricting travel and entry into the United States. Likewise, since the pandemic began, the criteria for “national interest exceptions” (NIEs) has also evolved. On March 2, 2021, the U.S. Department of State issued updated criteria for NIEs relating to certain travelers from the Schengen Area, United Kingdom, and Ireland. Given the frequency of the changes, it can be difficult to track the current state of these matters. The following information is a summary of the latest updates with regard to U.S. travel restrictions.

Travel Restrictions Based on Country of Physical Presence

Presidential Proclamation

Current Status

Impact

Proclamation 9984

In effect

Suspends and limits entry into the United States by individuals who were physically present in China during the 14-day period prior to their entry/attempted entry

Proclamation 9992

In effect

Suspends and limits entry into the United States by individuals who were physically present in Iran during the 14-day period prior to their entry/attempted entry

Proclamation 9993

Revoked

Suspended and limited entry into the United States by individuals who were physically present in the Schengen Area during the 14-day period prior to their entry/attempted entry

Proclamation 9996

Revoked

Suspended and limited entry into the United States by individuals who were physically present in the United Kingdom and Ireland during the 14-day period prior to their entry/attempted entry

Proclamation 10041

Revoked

Suspended and limited entry into the United States by individuals who were physically present in Brazil during the 14-day period prior to their entry/attempted entry

Proclamation 10143

In effect

Suspends and limits entry into the United States by individuals who were physically present in South Africa, the Schengen Area, the United Kingdom, Ireland, and Brazil during the 14-day period prior to their entry/attempted entry

Following the issuance of Proclamation 10143, the State Department rescinded previous NIE guidance and simultaneously issued new guidance on March 2, 2021, as related to the Schengen Area, the United Kingdom, and Ireland. According to the State Department, the original guidance had provided exceptions for “certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.” However, the updated guidance includes exceptions under Proclamation 10143 for individuals who “provide vital support for critical infrastructure.” [Emphasis added.] Additionally, NIEs remain available for individuals entering the United States “for purposes related to humanitarian travel, public health response, and national security.”

Travel Restrictions Based on Visa Type

On April 22, 2020, the Trump administration issued Proclamation 10014 suspending the entry of individuals to the United States on immigrant visas. This proclamation did not affect applications for adjustment of status or nonimmigrants, such as business visitors or temporary workers. On June 22, 2020, the Trump administration issued Proclamation 10052, which extended the sunset date of Proclamation 10014 to December 31, 2020. Proclamation 10052 also suspended the entry of certain individuals to the United States on select nonimmigrant visas, including H-1B, H-2B, J-1, and L-1 visa holders, as well as their dependents through the end of the year. On December 31, 2020, the Trump administration issued Proclamation 10131, extending Proclamations 10014 and 10052 until March 31, 2021. On February 24, 2021, the Biden administration revoked Proclamation 10014 and section 1 of Proclamation 10052. The Biden administration allowed the remaining sections of Proclamation 10052 to expire on March 31, 2021, and has not expressed any plans to renew or replace it at this time. As a result, Proclamations 10014 and 10052 are no longer in effect.

Backlogs Remain for Most Consular Operations

While the expiration of Proclamation 10052 is certainly welcome news, foreign nationals should not expect immediate processing of their visa applications. The backlog of cases pending at the U.S. consulates around the world remains an ongoing issue due to COVID-19. The U.S. consular posts have confirmed they will begin a phased resumption of routine visa services based on local conditions but no specific timeline is available. Additionally, applicants who are no longer subject to Proclamation 10052 may still face obstacles entering the United States due to country-specific travel restrictions. Foreign nationals who are subject to country-specific travel bans will continue to require an NIE authorizing each entry to the United States.