Should Deference Be Applied for Immigration Benefits? American Workers Should be Outraged.

The lame duck Biden-Harris administration’s rule related to the H-1B visa program – finalized on December 18 — codifies a practice known as deference, or presuming one is eligible for an immigration benefit simply because it was previously approved. This mentality – that a foreign worker doesn’t have to prove his or her case every time they seek to renew a visa – is not something Congress ever envisioned. It’s a corner-cutting measure that highlights the desire for speed over security, approval over appropriate vetting. American workers should be outraged.

In 2017, the Trump administration attempted to rein in the practice of granting deference. The administration expressly required U.S. Citizenship and Immigration Services (USCIS) officials to use their fact-finding authority by publishing a policy providing that “adjudicators must, in all cases, thoroughly review the petition and supporting evidence to determination for the benefit sought.” At that time, the agency argued that continued scrutiny of H-1B petitions is warranted because the burden of proof in establishing eligibility is, at all times, on the employer (not the government). The agency also argued that the deference policy was “impractical and costly to properly implement” and that “an adjudicator’s fact-finding authority should not be constrained by any prior petition approval, but instead, should be based on the merits of each case.”

However, under the new Biden rule – which goes into effect on January 17 — adjudicators will be encouraged to approve renewals, deferring to the first approval, rather than making sure the petitioner is truly eligible. There is nothing in statute that even implies that giving deference is appropriate. In fact, it’s counter to congressional intent because now the burden of proving eligibility shifts from the petitioner (employer) to the government.

Specifically, the new regulation says that “When adjudicating a request filed on Form I-129 involving the same parties and the same underlying facts, USCIS gives deference to its prior determination of the petitioner’s, applicant’s, or beneficiary’s eligibility. However, USCIS need not give deference to a prior approval if: there was a material error involved with a prior approval; there has been a material change in circumstances or eligibility requirements; or there is new, material information that adversely impacts the petitioner’s, applicant’s, or beneficiary’s eligibility.”  In other words, it mandates that adjudicators give deference to employers and foreign workers. It lays out only a few instances where they are not to apply the policy (though noticeably absent is the impact a decision would have on American workers).  The Biden deference policy handcuffs adjudicators from applying their training and using their discretion to look behind the petition.

The agency claims that applying deference will “help promote consistency and efficiency for both USCIS and its stakeholders.”  By codifying this policy, adjudicators can now cut corners in order to approve petitions faster, appeasing employers in the process. And, they cannot undo a decision that may have initially been flawed or approved in error.

Why shouldn’t employers have to prove that they continue to need these foreign workers? Why would the government pass up the opportunity to look again at the facts and evidence?

If deference is the standard in approving H-1B visas, what other programs will be given the same treatment?  What if this policy applied to other applications or petitions for benefits? Would we simply approve someone’s application for naturalization simply because they were approved for a green card years earlier?  Thankfully, we will soon have new executive leadership. Unfortunately, it will take a time-consuming notice and comment rulemaking process to undo this Biden deference policy.

President-elect Trump has an opportunity to restore integrity in the H-1B program by undoing this regulation. The regulation goes into effect just days before he is sworn into office. The new administration should immediately move to pause this regulation, including and especially this policy that is out of line with the statute and the desire of the American people.