H-1B, L-1 visa extensions may face increased scrutiny as USCIS moves to end deference to earlier approvals | Today’s news

The Trump administration has proposed repealing a rule that requires U.S. immigration authorities to generally defer to their prior eligibility determinations when considering certain petition extensions for nonimmigrant workers, which could increase scrutiny of H-1B and other employment-based immigration applications.

The Department of Homeland Security (DHS), through US Citizenship and Immigration Services (USCIS), published a proposed rule on October 14 that seeks to eliminate 8 CFR section 214.1(c)(5), which requires immigration officials to generally respect prior eligibility determinations where the same parties and underlying facts are involved.

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

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

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

Under existing regulation, USCIS generally prefers a prior eligibility determination when an employer requests an extension of a nonimmigrant worker’s petition involving the same parties and underlying facts.

Officials may depart from an earlier decision if they discover a material error, a material change in circumstances or eligibility requirements, or significant new information that adversely affects eligibility.

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

If the proposal is complete, the earlier approval would no longer serve as the default starting point for the extension decision. USCIS officials would be able to reevaluate the petitioner’s evidence and the beneficiary’s eligibility based on the record in each case.

DHS clarified that this change will not prevent officials from considering prior approval where applicable. Instead, it would remove the obligation to defer those decisions.

The department said the current policy could encourage some employers to assume that previously approved petitions will be subject to less scrutiny for subsequent extensions. It argued that the new review would help identify outdated information, inconsistencies and potentially fraudulent applications.

Why is the Trump administration proposing a change?

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

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

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

The proposed rule also cites concerns about potentially erroneous approvals being carried over to subsequent petitions, including cases involving changes in job duties, compensation, business operations, or employer circumstances.

DHS said removing that requirement would allow officials to review each application on its merits, request additional evidence if necessary, and identify possible fraud or noncompliance.

More requests for evidence, longer processing times are expected

The proposed change could expand the documentation required of employers seeking to extend nonimmigrant worker petitions.

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

Employers who receive an RFE would need to collect additional documents and submit evidence to confirm continued eligibility.

The Department estimates the additional annual costs to petitioners in response to these RFEs to be approximately $133,987, or an average of $22.17 per additional RFE under its cost model.

But DHS also warned of costs it can’t quantify, including longer decision times, additional legal and administrative work and uncertainty for employers and workers planning for further employment.

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

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

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Could the proposal affect existing H-1B workers?

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

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

DHS recognized that employers and workers could develop business, career, and personal plans based on the expectation of ongoing approval. She argued, however, that prior approval does not guarantee subsequent extensions and that applicants must demonstrate eligibility for each immigration benefit.

For workers whose extensions were filed on time, existing rules may allow them to remain in their authorized period of stay while USCIS reviews the pending petition and, under qualifying circumstances, may continue to work. The exact effect depends on the applicable rules and the worker’s circumstances.

The proposed change does not automatically cancel existing approvals or mean that every application for an extension will be refused. Rather, it would allow USCIS to conduct a new review of each petition without having to delay a previous eligibility determination.

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