DHS Proposes Ending H-1B Deference Rule, Impacting Visa Renewals

The Department of Homeland Security has proposed ending the regulation that requires U.S. Citizenship and Immigration Services to rely on prior eligibility decisions when reviewing covered Form I-129 extensions. Published as a proposal rather than a final rule, the change would remove the requirement for officers to defer to earlier determinations when the same parties and facts are involved.

The proposal covers H-1B, L-1, O-1, TN, E, and P petitions, alongside H-2B classifications. Under the current standard, USCIS officers must defer to past approvals unless there is a material error, a material change in circumstances, or new harmful information. If finalized, officers could consider earlier approvals but would not start from the presumption that they were correct, requiring a new eligibility determination for each extension.

The agency estimates the current policy applies to roughly 208,429 petitions annually and projects about 6,044 additional Requests for Evidence each year if the requirement is removed. DHS argues that the current approach shifts the burden of proof from employers to adjudicators, whereas the proposed revision aims to strengthen program integrity and encourage independent reviews.

Immigration attorneys and professionals noted that the change could make successive extensions more uncertain for workers who depend on them. Because Indians comprise a significant majority of H-1B beneficiaries, any shift in how extensions are adjudicated directly impacts those awaiting employment-based permanent residency through multiple renewals.