After suspending some major global tech and IT firms from a key green card programme, the Trump administration has floated a proposal to remove the "deference to prior USCIS determinations of eligibility' policy for foreign workers seeking visa extensions in the US.
The US Department of Homeland Security (DHS)'s proposal has not yet been implemented. As of now, the department has sought comments on the “entirety of this proposed rulemaking package”.
The notification of the proposal has, however, raised eyebrows among H-1B visa holders. Any future implementation of the proposal may affect Indians, who accounted for approximately 70 per cent of all H-1B beneficiaries in FY 2025, according to USCIS data.
This proposal specifically concerns those seeking an extension of their non-immigrant visa.
What is the US' new H-1B visa extension proposal?
The US Department of Homeland Security and the US Citizenship and Immigration Services (USCIS), proposed to remove a policy (8 CFR 214.1(c)(5)) which generally provides that USCIS gives "deference to a prior approval" involving the same facts when adjudicating a request to extend a petition for an alien's employment or stay.
Under the rule, USCIS gives weight to an earlier approval. The deference means that if the US government approved a visa application in the past, the administration will trust its own previous decision and approve your renewal or extension.
In this regard, the US department explains: "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 most often applies when a petitioning employer seeks to extend a petition for a foreign worker's employment or authorised stay in the United States under the same previously approved non-immigrant worker classification.
The proposal states that under the current regulation, the USCIS must generally "defer to the prior determination of eligibility" for the nonimmigrant worker classification "unless there was a material error, a material change, or new material information".
Petitioners (employers) use Form I-129 to file on behalf of a nonimmigrant worker to come to the US temporarily to perform services or labour, or to receive training, as an 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 worker.
What would change if the new proposal is implemented?
The US wants to remove the deference policy, which allows officers to permit visa extension based on prior approvals, altogether.
The department says that the proposed change would apply to all benefit requests filed using Form I-129. However, it would not prohibit USCIS officers from considering prior approval where relevant.
"Rather, it would remove the requirement that officers begin from a position of deference to the prior approval," the proposal states.
How may it impact Indians and people of other nationalities working in US?
This would mean tighter scrutiny even for the visa extension application. There'll be no leverage for those who were previously given visa extensions. They will undergo the same scrutiny as new applicants.
If this rule is implemented, the visa extension applications would no longer be deferred to an earlier approval when an employer files a qualifying Form I-129 extension.
The DHS says the proposed removal would enable a "thorough review of each petition".
The number of requests for evidence (RFE) is expected to increase, resulting in additional time burden for petitioners to submit additional supporting documentation and evidence.
"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 noted in its analysis.
The firm explains that the proposal does not change the basic eligibility standards for a classification. Instead, it changes the framework that the USCIS would use to review a later filing.
The firm said in an article on its website, "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 US government says the rule would also impose costs on petitioners by lengthening adjudication times and increasing uncertainty regarding continued employment. The DHS estimates that the rule would impose new annual costs on petitioners of approximately $133,987 due to increased RFEs.
"In addition, the rule would impose costs on USCIS by increasing the adjudicative workload and operational costs, as officers would spend more time reassessing eligibility issues previously reviewed and may issue an increased number of RFEs, thereby increasing overall resource demands," the proposal states.
There's no matter of concern as of now. The DHS must publish a final rule before 8 CFR 214.1(c)(5) can be removed.
Why this change?
The Trump administration stated in its proposal that the deference policy potentially reduced scrutiny of extension requests of nonimmigrant worker classifications, which may have resulted in "perpetuating erroneous prior approvals and creating an environment in which fraudulent and meritless petitions are less likely to be detected before approval."
According to the proposal, the DHS believes that some petitioners interpreted the deference policy as "reducing their obligation to demonstrate continued eligibility for the requested nonimmigrant worker classification when seeking an extension of a prior approval."
It also notes that the deference regulation and policy effectively shift the burden from the petitioner to the USCIS officer to justify departing from a prior approval.
Therefore, the DHS proposes to remove the deference policy (8 CFR 214.1(c)(5)).
"The DHS believes that this change would better align DHS regulations and USCIS adjudicatory practice with the agency's longstanding interpretation of the Immigration and Nationality Act (INA or Act), which places the burden of proof in establishing eligibility for all immigration benefits on the petitioner," the proposal stated.
It added, "Removing the deference requirement would also help to ensure that USCIS officers fully review the facts and evidence in every case to ensure continued eligibility."
"Overall, DHS believes that this change would promote more complete adjudications, strengthen program integrity in the adjudication of nonimmigrant worker benefits, reduce the risk of perpetuating erroneous approvals, and support the Administration's broader efforts to better protect U.S. workers and more faithfully enforce the immigration laws enacted by Congress," the Trump administration said.
'Burden of proof is on petitioner'
The US proposal notes that although there is a "previous finding of eligibility," the burden of proof in any immigration request — including a request for an extension of petition validity — remains with the petitioner.
"Officers are not bound to approve subsequent petitions seeking immigration benefits where eligibility has not been demonstrated, merely because of a prior approval," the proposal states.
It notes that the prior approval may have been erroneous, in which case giving deference to that prior determination of eligibility, because the adjudicating officer was not aware of the error, may perpetuate "unmeritorious approvals".
"Even if the prior approval was not erroneous, the burden of proof remains on the petitioner to establish eligibility in each benefit request. The USCIS decides each matter according to the evidence of record on a case-by-case basis," it says.
The US proposal says that an extension of stay is ordinarily granted only if the "alien [foreign worker]" is still in, and has maintained his or her nonimmigrant status at the time the request is filed.
When requesting an extension of stay on Form I-129, the petitioner must submit evidence to prove that the worker maintained his or her status along with all other initial evidence specified in the regulations and in accordance with form instructions.
An extension of stay request is often submitted together with a request for an extension of petition validity, which is a request to allow the foreigner to continue to work for his or her current employer in the same non-immigrant classification
The petition extension and extension of stay request are filed on Form I-129 along with evidence of continued eligibility for the nonimmigrant classification, and all other initial evidence specified in the regulations and in accordance with form instructions.