H-1B holders may face tougher scrutiny under proposed US rule | What will change?

The new proposed rule being considered would allow federal immigration officers to disregard previous approvals when reviewing extension requests.

The United States Department of Homeland Security (DHS) has put forward a regulatory proposal that could undermine an important aspect of how temporary work visas are processed, sparking concern throughout the Indian immigrant community.

The new proposed rule being considered would allow federal immigration officers to disregard previous approvals when reviewing extension requests for non-immigrant work visas, such as the widely used H-1B and L-1 programmes. The DHS’ proposal hasn’t been put into action yet. Currently, the department is actively seeking feedback on the “entirety of this proposed rulemaking package.”

Indian nationals make up roughly 70% of all H-1B beneficiaries in FY 2025, based on US Citizenship and Immigration Services (USCIS) data.

The proposal put forward by DHS and USCIS seeks to eliminate a specific policy (8 CFR 214.1(c)(5)). This policy currently requires USCIS to show “deference to a prior approval” when reviewing the same circumstances during visa extension or petition renewal requests.

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According to the US department’s explanation, this change would alter how extension requests are handled going forward. “When adjudicating a request filed on Form I-129 (Petition for a Nonimmigrant Worker) 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.”

This requirement typically comes into play when an employer submits a petition to renew or extend a foreign worker’s permission to work or stay in the United States under the same nonimmigrant worker category that was previously approved.

According to the proposal, the current regulation requires USCIS to generally rely on the earlier eligibility determination for the nonimmigrant worker classification “unless there was a material error, a material change, or new material information.”

Employers submit Form I-129 to petition for a nonimmigrant worker to enter the US temporarily for work, labour, or training purposes in categories including H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, or R-1 nonimmigrant classifications.

The US is looking to eliminate the deference policy — a system that lets officers grant visa extensions by relying on earlier approvals. The department explains that this shift would touch every benefit request submitted via Form I-129. That said, it wouldn’t stop USCIS officers from taking a prior approval into account when it makes sense to do so. “Rather, it would remove the requirement that officers begin from a position of deference to the prior approval,” the proposal says.

This change would lead to more rigorous examination of visa extension requests. People who previously received visa extensions won’t have any special advantage anymore. Instead, they’ll face the same level of scrutiny as those applying for visas for the first time.

Under this new rule, visa extension applications wouldn’t automatically get expedited approval when an employer submits a qualifying Form I-129 extension request. The DHS believes this adjustment would allow for a comprehensive evaluation of every petition.

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Experts expect a rise in requests for additional evidence (RFE), which means petitioners will need to spend more time gathering and submitting extra documentation and supporting materials.

“For workers who need an extension to keep working, the USCIS deference policy proposal could lead to a closer review. Officers could review facts that USCIS already accepted once before,” the Vasquez Law firm stated on its website.

Additional financial burden on petitioners

The firm clarifies that this proposal doesn’t alter the fundamental eligibility criteria for a classification. Rather, it modifies how USCIS would evaluate subsequent filings.

“A worker may feel the practical effects even though the employer is often the petitioner...If USCIS requests more evidence, the employer may need to document the offered role, business operations, compensation, contracts, work location, and the worker’s qualifications again. The worker may also need records showing continued maintenance of nonimmigrant status. Maintaining status means following the rules of the worker’s temporary immigration category,” the firm added.