H-1B holders may face tougher scrutiny under proposed US rule | What will change?

DHS and USCIS propose eliminating the deference policy in regulation 8 CFR 214.1(c)(5). That policy currently tells USCIS to generally respect an earlier eligibility decision when an employer seeks to extend the same worker’s nonimmigrant classification. The proposal would remove that starting presumption.

For example, an employer filing Form I-129 to extend an H-1B worker’s stay might have received approval for the same job before. Under the proposal, the officer could review the petition independently instead of relying on the previous decision. Prior approval could still be considered, but officers would not be required to begin with deference.

The proposal has not taken effect. DHS is seeking feedback on the entire package. If adopted, extension requests could receive more rigorous review, produce more Requests for Evidence, take longer, and create additional uncertainty for employers and workers.

“Deference to a prior approval” means USCIS generally accepts its earlier eligibility decision when reviewing a renewal or extension involving the same parties and underlying facts. The policy is designed to prevent officers from reexamining every previously accepted issue from scratch. It applies to Form I-129 filings for nonimmigrant worker classifications.

For instance, an employer extending an H-1B petition could rely on the earlier finding that the worker and role qualified. USCIS would normally follow that decision unless it found a material error, a material change, or new material information. The earlier approval is not an absolute guarantee, but it gives the subsequent filing a favorable starting point.

The proposed rule would remove that required starting position. Officers could still consider past approvals when appropriate, but the proposal would no longer require deference. This could make routine extensions more demanding and less predictable.

Without a deference-based starting point, USCIS could examine extension petitions more rigorously, even after approving similar facts before. The change would not create new basic eligibility requirements, but it could make employers prove familiar details again. That matters because an extension is often needed for a worker to keep working legally.

An employer might need to document the offered role, business operations, compensation, contracts, work location, and the worker’s qualifications again. The worker might also need records showing continued maintenance of nonimmigrant status. USCIS could issue a Request for Evidence when the initial filing does not answer its questions sufficiently.

The article expects more RFEs, longer decision times, and additional costs. DHS projects about $133,987 in new annual expenses for petitioners. Job continuity could become less certain, although the proposal is still under consideration and has not been implemented.

Indian nationals made up roughly 70% of all H-1B beneficiaries in fiscal year 2025, according to USCIS data cited in the article. H-1B is one of the temporary nonimmigrant work-visa categories covered by the proposed change. The figure shows why extension-policy changes could have a particularly large effect on Indian workers and their employers.

The proposal concerns how USCIS reviews later Form I-129 filings. If an employer seeks to extend an H-1B worker’s approved classification, officers would no longer have to begin by deferring to the previous approval. They could review the same role, employer, worker qualifications, and status-related facts more closely.

The 70% figure describes the H-1B beneficiary population, not all temporary work-visa holders. The proposed rule remains under consideration. DHS is seeking feedback, so the article does not establish that the change will become final or specify when it would begin.

An employer submits Form I-129 to petition for a nonimmigrant worker to enter or remain in the United States temporarily for work, labor, or training. The form covers classifications including H-1B and L-1, along with several other categories. The employer is usually the petitioner, while the worker may feel the filing’s practical effects.

For example, an employer extending an H-1B worker could be asked to document the offered role, business operations, compensation, contracts, work location, and the worker’s qualifications again. The worker might also need records showing continued maintenance of nonimmigrant status. These documents could be requested even when related facts were accepted previously.

The proposed rule would not change the fundamental eligibility criteria for a classification. Instead, it would change how later filings are evaluated. Because officers would not have to start from the earlier approval, petitioners may spend more time and money preparing extension cases.

A Request for Evidence, or RFE, is a request from USCIS for additional documents or supporting information needed to evaluate a petition. In this context, it could ask the petitioner or worker to clarify facts behind an extension request. The article presents RFEs as a likely practical effect, not as a guaranteed outcome.

Suppose an employer files to extend an H-1B worker’s permission under the same role. Without required deference, an officer could revisit the position, compensation, contracts, business operations, work location, or qualifications. If the filing does not sufficiently establish those facts, USCIS could request more evidence before deciding it.

Experts cited in the article expect RFEs to rise under the proposal. That could mean more time gathering documents, higher costs for petitioners, and longer decisions. The change remains proposed, however, and USCIS may still consider a previous approval when doing so makes sense.

A temporary nonimmigrant work visa is permission to work, labor, or train in the United States under a specific temporary classification. The article lists H-1B and L-1 among these categories, alongside others covered by Form I-129. The person’s work and stay are tied to the requirements of that temporary category and an approved petition.

Maintaining status means continuing to follow the rules of the worker’s category. The article explains that a worker may need records showing continued maintenance of nonimmigrant status during an extension review. For example, an employer might seek to renew the worker’s permission under the same classification, while USCIS checks the supporting facts.

This is different from becoming a permanent US resident. A temporary nonimmigrant classification concerns authorized temporary work or stay, while permanent residence is a separate immigration status. The article focuses on temporary visa extensions and does not describe a process for obtaining permanent residence.