The US Department of Homeland Security (DHS) has unveiled a proposal that could fundamentally alter the process for foreign workers seeking non-immigrant visa extensions, including those on H-1B visas. The initiative aims to eliminate the long-standing 'deference' policy, which currently allows the US Citizenship and Immigration Services (USCIS) to rely on its own previous determinations when adjudicating extension requests for the same applicant.
Under the existing regulation, coded as 8 CFR 214.1(c)(5), USCIS generally provides deference to prior approvals involving the same parties and underlying facts. This framework assumes that if the government has vetted and approved a worker’s eligibility in the past, that decision carries weight during subsequent renewal processes. The proposed rule change would remove this requirement, meaning that future extension applications would no longer benefit from an assumption of prior eligibility.
If implemented, the change would subject visa extensions to the same level of scrutiny as entirely new applications. While the DHS notes that the policy would not strictly forbid officers from considering past approvals, it would eliminate the structural mandate for them to begin their assessment from a position of deference. This shift is intended to enable a more thorough review of every petition filed using Form I-129, which covers a wide range of non-immigrant categories, including H-1B, H-2A, H-2B, L-1, and O-1 workers.
The impact of this proposal is of particular significance to the Indian workforce. According to USCIS data, individuals from India accounted for approximately 70 percent of all H-1B beneficiaries in the 2025 fiscal year. Analysts suggest that the end of the deference policy could lead to a substantial rise in Requests for Evidence (RFEs), forcing employers to provide exhaustive documentation regarding business operations, compensation, work locations, and employee qualifications, even for workers who have previously been cleared.
The administrative burden associated with this change is expected to be significant. The DHS has acknowledged that the new rule would likely increase the adjudicative workload for USCIS officers, leading to longer processing times and heightened uncertainty for both employers and employees. The department estimates that the proposal could impose roughly $133,987 in new annual costs on petitioners due to the surge in RFEs and the time required to compile additional supporting evidence.
Legal experts, including those from the Vasquez Law firm, have noted that while the fundamental eligibility standards for visa classifications remain unchanged, the procedural framework for review is set to become much more rigorous. Employers may find themselves needing to re-verify details that were previously accepted by the government, creating a more cumbersome process for maintaining temporary immigration status in the United States.
Currently, the proposal has not been implemented, and it remains subject to a public comment period regarding the entirety of the rulemaking package. The DHS must formally publish a final rule before the existing deference policy can be officially removed. Until such a step is taken, the current rules remain in effect, and there is no immediate change to the existing visa extension procedures for foreign workers.
Comments