H-1B Visa Extension: How Ending ‘Deference’ Policy May Affect Indians? New US rule could cost ‘$134,000’ | Explained | Today’s news

After suspending some major global technology and IT firms from a key green card program, the Trump administration has proposed removing “deference to prior USCIS eligibility determinations” for foreign workers applying for US visa extensions.

The proposal of the US Department of Homeland Security (DHS) has not yet been implemented. As of now, the department has requested comments on “the entire proposed rulemaking package.”

Notification of proposal however, it has raised eyebrows among H-1B visa holders. Any future implementation of the proposal may affect Indians, who made up about 70 percent of all H-1B recipients in fiscal year 2025, according to USCIS data.

This proposal specifically applies to those applying to extend their nonimmigrant visa.

What is the new US H-1B visa extension proposal?

The US Department of Homeland Security and US Citizenship and Immigration Services (USCIS) proposed to eliminate the policy (8 CFR 214.1(c)(5)) that generally provides that USCIS gives “deference to prior consent” involving the same facts when considering an alien’s application for extension of employment or residence.

As a rule, USCIS gives weight to earlier approval. Deference means that if the US government has approved a visa application in the past, the administration will trust its own previous decision and approve your extension or extension.

In this regard, the US Department explains: “When considering an application filed on Form I-129 (Petition for Nonimmigrant Worker) that involves the same parties and the same underlying facts, USCIS gives preference to its prior determination of the eligibility of the applicant, applicant, or recipient.”

This requirement is most often applied when the applicant employer seeks to extend the foreign worker’s application for employment or authorized stay in the United States under the same previously approved nonimmigrant worker classification.

The proposal states that under the current regulation, USCIS must generally “submit to a prior eligibility determination” to classify a nonimmigrant worker “unless there has been a material error, material change, or material new information.”

Petitioners (employers) use Form I-129 to file on behalf of a nonimmigrant worker who is coming to the U.S. temporarily to perform services or work or 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-3, P-3, P-2, P-2, P-3, P-2 nonimmigrant worker.

What would change if the new proposal were implemented?

The US wants to completely eliminate the deference policy that allows officers to grant visa extensions based on prior approval.

The department says the proposed change would apply to all claims for benefits filed using Form I-129. However, it does not prohibit USCIS officers from considering prior approval where relevant.

“Rather, it would remove the requirement that officers start from a position of deference to prior approval,” the proposal states.

How might this affect Indians and people of other nationalities working in the US?

This would mean a stricter control even for visa extension applications. For those previously granted visa extensions, there will be no impact. They will go through the same check as new applicants.

If this rule is implemented, visa extension applications would no longer be delayed for earlier approval when an employer files a qualifying Form I-129 extension.

DHS says the proposed removal would allow for a “thorough review of each petition.”

The number of requests for evidence (RFEs) is expected to increase, resulting in an additional time burden for petitioners to submit additional supporting documentation and evidence.

“For workers who need an extension to continue working, USCIS’s proposed deference policy could lead to closer scrutiny. Officers could review facts that USCIS has already accepted,” the Vasquez law firm noted in its analysis.

The firm explains that the proposal does not change the basic eligibility standards for classification. Instead, it changes the framework that USCIS would use to review a later filing.

In an article on its website, the firm said: “The employee may experience practical consequences, although often the employer is the applicant…If USCIS requests additional evidence, the employer may need to re-document the role being offered, business operations, compensation, contracts, work location, and the worker’s qualifications. The worker may also need records showing continued maintenance of nonimmigrant status. Maintaining status means complying with the Temporary Immigrant Worker Rules.”

The U.S. government says the rule would also impose costs on petitioners because it would increase decision times and increase uncertainty about future employment. DHS estimates that this rule will impose approximately $133,987 in new annual costs on petitioners due to increased RFEs.

“In addition, the rule would impose costs on USCIS by increasing workload and operating costs, as officers would spend more time re-evaluating previously reviewed eligibility questions and may issue an increased number of RFEs, increasing overall resource requirements,” the proposal states.

There is no cause for concern yet. DHS must publish a final rule before 8 CFR 214.1(c)(5) can be removed.

Why this change?

In its proposal, the Trump administration said the deference policy potentially limited review of nonimmigrant worker classification extension applications, which could have led to “perpetuation of erroneous prior approvals and created an environment in which fraudulent and frivolous petitions are less likely to be detected prior to approval.”

According to the proposal, DHS believes that some petitioners have interpreted the deference policy as “reducing their obligation to demonstrate continued eligibility for the required nonimmigrant worker classification when seeking an extension of prior approval.”

It also notes that the deference regulations and policy effectively shift the burden from the applicant to the USCIS officer to justify a departure from prior approval.

Therefore, DHS is proposing to eliminate the deference policy (8 CFR 214.1(c)(5)).

“DHS believes that this change would better align DHS regulations and USCIS decision-making practice with the long-standing 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 said.

He added, “Eliminating the worship requirement would also help ensure that USCIS officers fully review the facts and evidence in each case to ensure continued eligibility.”

“Overall, DHS believes this change would promote more complete decision-making, strengthen the program’s integrity in assessing benefits for nonimmigrant workers, reduce the risk of repeat erroneous approvals, and support the administration’s broader efforts to better protect American workers and more faithfully enforce immigration laws enacted by Congress,” the Trump administration said.

“The burden of proof lies with the applicant”

The U.S. proposal states that while there is a “prior finding of eligibility,” the burden of proof in any immigration application — including a petition extension — remains with the petitioner.

“Officials are not required to approve subsequent petitions seeking immigration benefits, unless eligibility has been demonstrated, solely because of prior approval,” the proposal states.

It notes that the prior approval may have been erroneous, in which case resorting to that prior eligibility determination because the Assessing Officer was unaware of the error may perpetuate “undeserved approvals.”

“Even if the prior approval was not erroneous, the burden of proof remains on the petitioner to demonstrate eligibility in each benefit application. USCIS decides each matter on a case-by-case basis,” he says.

The U.S. proposal says that extensions of stay are normally only allowed if the “alien (foreign worker)” is still in the country and has maintained nonimmigrant status at the time of application.

When applying for an extension of stay on Form I-129, the applicant must submit evidence that the worker has maintained his status, along with all other prima facie evidence specified in the regulations and in accordance with the form’s instructions.

An application for extension of stay is often submitted in conjunction with a petition for extension, which is a request to allow the alien to continue working for his current employer in the same nonimmigrant classification.

An application for extension of petition and extension of stay is filed on Form I-129, together with proof of permanent eligibility for nonimmigrant classification and all other initial documents specified in the regulations and in accordance with the instructions for the form.