H-1B, L-1 visa extensions may face greater scrutiny as USCIS seeks to end deference to earlier approvals

The Trump administration has proposed scrapping a rule that requires US immigration authorities to generally defer to their previous eligibility decisions when adjudicating certain nonimmigrant worker petition extensions, potentially increasing scrutiny of H-1B applications and other employment-based immigration requests.

The Department of Homeland Security (DHS), through US Citizenship and Immigration Services (USCIS), published a proposed rule on October 14 seeking to remove Section 8 CFR 214.1(c)(5), which requires immigration officers to generally respect earlier eligibility determinations when the same parties and underlying facts are involved.

The proposal would require USCIS officers to independently assess the evidence and continued eligibility in every case, even if an earlier petition involving the same employer and worker had been approved. The agency said the change would strengthen the integrity of the immigration system, improve fraud detection and better protect the interests of US workers.

The proposed rule is open for public comments until November 13, 2026. It is not yet a final rule.

What will change for H-1B workers and employers?

Under the existing regulation, USCIS generally gives deference to a previous eligibility determination when an employer seeks an extension of a nonimmigrant worker petition involving the same parties and underlying facts.

Officers can depart from the earlier decision if they identify a material error, a significant change in circumstances or eligibility requirements, or new material information that adversely affects eligibility.

The proposed rule would remove this requirement for petitions filed using Form I-129, Petition for a Nonimmigrant Worker. This form covers H-1B and L-1 workers, among other nonimmigrant classifications.

If the proposal is finalised, an earlier approval would no longer serve as the default starting point for an extension decision. USCIS officers would be able to reassess the petitioner's evidence and the beneficiary's eligibility based on the record in each case.

DHS clarified that the change would not prevent officers from considering previous approvals where relevant. Instead, it would remove the obligation to defer to those decisions.

The department said the existing policy could encourage some employers to assume that previously approved petitions would receive less scrutiny during subsequent extensions. It argued that a fresh review would help identify outdated information, inconsistencies and potentially fraudulent applications.

Why is the Trump administration proposing the change?

DHS said the existing deference policy risks shifting the burden of proof from employers and petitioners to immigration officers.

Under US immigration law, the petitioner is responsible for establishing eligibility for the benefit being sought. DHS argues that requiring officers to identify a material error or change before departing from an earlier approval effectively creates a presumption that the previous decision was correct.

The department said this could discourage officers from seeking additional documentation when the evidence submitted with an extension request does not adequately establish continued eligibility.

The proposed rule also cites concerns about potentially erroneous approvals being carried forward into subsequent petitions, including cases involving changes in job responsibilities, compensation, business operations or the employer's circumstances.

DHS said removing the requirement would allow officers to examine each application on its own merits, request additional evidence where necessary and identify possible fraud or non-compliance.

More requests for evidence, longer processing times expected

The proposed change could increase the documentation required from employers seeking to extend nonimmigrant worker petitions.

DHS estimates that removing the deference provision could result in approximately 6,044 additional RFEs annually, based on an estimated increase of 2.9 percentage points in the RFE rate and an affected population of 208,429 petitions.

Employers receiving RFEs would have to gather additional documents and submit evidence to establish continued eligibility.

The department estimates the additional annual cost to petitioners from responding to these RFEs at approximately $133,987, or an average of $22.17 per additional RFE under its cost model.

However, DHS also warned of costs that it could not quantify, including longer adjudication timelines, additional legal and administrative work, and uncertainty for employers and workers planning continued employment.

According to the department, petitions receiving an RFE took an average of 64 calendar days longer to process than petitions that did not receive one during fiscal years 2022 to 2025.

The agency said the additional scrutiny could increase its own operational workload and put further pressure on processing capacity. Any resulting increase in USCIS costs could be considered in a future comprehensive fee review.

Could the proposal affect existing H-1B workers?

The proposal concerns how USCIS adjudicates Form I-129 petitions and does not itself change the underlying eligibility criteria for H-1B or other covered nonimmigrant classifications.

Employers would still be able to seek extensions for eligible workers. However, they could no longer rely on the regulatory requirement that USCIS generally defer to an earlier approval when the parties and underlying facts remain unchanged.

DHS acknowledged that employers and workers may have made business, career and personal plans based on the expectation of continued approvals. It nevertheless argued that a previous approval does not guarantee a subsequent extension and that applicants must demonstrate eligibility for each immigration benefit.

For workers whose extensions are filed on time, existing rules may allow them to remain in an authorised period of stay while USCIS adjudicates a pending petition and, in qualifying circumstances, continue working. The precise effect depends on the applicable rules and the worker's circumstances.

The proposed change does not automatically revoke existing approvals or mean that every extension application will be denied. Rather, it would allow USCIS to conduct a fresh assessment of each petition without being required to defer to a prior eligibility determination.