US proposes ending H-1B deference policy

The US Department of Homeland Security (DHS) has proposed ending a policy that generally allows immigration officers to rely on earlier approvals when reviewing certain visa extensions. The change could lead to fresh scrutiny of H-1B petitions, more document requests and higher costs for employers.

What is the proposed change?

The proposal would remove a rule that asks US Citizenship and Immigration Services (USCIS) officers to generally respect earlier eligibility decisions when the same parties and facts remain unchanged.

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Under the current policy, officers generally rely on an earlier approval when considering an extension if the circumstances remain the same. They can depart from that decision if they find a significant error, a major change in circumstances or new information that affects eligibility.

If the proposal takes effect, officers could reassess each extension request even when the circumstances have not changed. Employers would need to establish that workers continue to meet the requirements for their visa category.

Why could H-1B workers be affected?

H-1B workers seeking to extend their stay in the US could face closer scrutiny of their petitions. Employers may have to provide additional documents to establish that their employees remain eligible.

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DHS said the existing policy could limit officers' ability to examine cases fully and identify errors or possible fraud. The department said removing the requirement would strengthen checks and ensure employers continue to prove that their workers qualify for the requested immigration benefit.

The change could affect H-1B workers from India and other countries, as well as their employers, by subjecting extension petitions to fresh scrutiny. Workers could face additional document requests and delays if USCIS seeks further evidence to verify their eligibility.

More paperwork and costs for employers

DHS estimates that the change could lead to 6,044 additional requests for evidence (RFEs) each year and cost petitioners about $133,987 annually.

An RFE is a notice from USCIS asking an employer or applicant to provide more documents or information before the agency decides a case. Responding to such a notice can increase the time and work involved in an application.

The department also warned that more detailed reviews could lengthen processing times and create uncertainty for workers seeking to continue their employment in the US. Additional reviews could increase USCIS's workload and put pressure on its processing resources.

The proposed change applies to Form I-129, which employers use to petition for non-immigrant workers. The form covers H-1B petitions as well as several other worker visa categories.

The proposal is not a final rule and has not taken effect. DHS is accepting public comments until November 13, 2026, and will consider the feedback before making a final decision.