The United States Department of Homeland Security (DHS) has put forward a regulatory proposal that could undermine an important aspect of how temporary work visas are processed, sparking concern throughout the Indian immigrant community.
The new proposed rule being considered would allow federal immigration officers to disregard previous approvals when reviewing extension requests for nonimmigrant work visas, such as the widely-used H-1B and L-1 programs.
The DHS' proposal hasn't been put into action yet. Currently, the department is actively seeking feedback on the “entirety of this proposed rulemaking package.”
Deep Dive
What would eliminating USCIS deference to previous H-1B approvals change?
Has the proposal to change H-1B extension reviews taken effect?
How could the proposed H-1B extension rule affect Indian workers and employers?
The proposal announcement has definitely caught the attention of H-1B visa holders. If this proposal moves forward, it could really impact Indian nationals, who make up roughly 70 percent of all H-1B beneficiaries in FY 2025, based on USCIS data.
This proposal is specifically aimed at people looking to extend their non-immigrant visa status.
Here's what you need to know about the US' new H-1B visa extension proposal
The DHS and the US Citizenship and Immigration Services (USCIS) have put forward a proposal to eliminate a specific policy (8 CFR 214.1(c)(5)). This policy currently requires USCIS to show "deference to a prior approval" when reviewing the same circumstances during visa extension or petition renewal requests.
{{/usCountry}}The DHS and the US Citizenship and Immigration Services (USCIS) have put forward a proposal to eliminate a specific policy (8 CFR 214.1(c)(5)). This policy currently requires USCIS to show "deference to a prior approval" when reviewing the same circumstances during visa extension or petition renewal requests.
{{/usCountry}}How does this policy work today? Well, USCIS currently gives significant weight to earlier approvals. Essentially, if your visa application was previously approved by the government, they trust that earlier decision and typically approve your extension or renewal without starting from scratch.
According to the US department's explanation, this change would alter how extension requests are handled going forward. "When adjudicating a request filed on Form I-129 (Petition for a Nonimmigrant Worker) involving the same parties and the same underlying facts, USCIS gives deference to its prior determination of the petitioner's, applicant's, or beneficiary's eligibility."
This requirement typically comes into play when an employer submits a petition to renew or extend a foreign worker's permission to work or stay in the United States under the same nonimmigrant worker category that was previously approved.
According to the proposal, the current regulation requires USCIS to generally rely on the earlier eligibility determination for the nonimmigrant worker classification “unless there was a material error, a material change, or new material information.”
Employers submit Form I-129 to petition for a nonimmigrant worker to enter the US temporarily for work, labor, or training purposes in categories including H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, or R-1 nonimmigrant classifications.
What would change if this new proposal gets put into action?
The US is looking to eliminate the deference policy—a system that lets officers grant visa extensions by relying on earlier approvals. The department explains that this shift would touch every benefit request submitted via Form I-129. That said, it wouldn't stop USCIS officers from taking a prior approval into account when it makes sense to do so.
"Rather, it would remove the requirement that officers begin from a position of deference to the prior approval," the proposal says.
827 characters · 121 words · 🙂 Friendly · English
How the new proposal may impact Indians and people of other nationality working in US?
This change would lead to more rigorous examination of visa extension requests. People who previously received visa extensions won't have any special advantage anymore. Instead, they'll face the same level of scrutiny as those applying for visas for the first time.
Under this new rule, visa extension applications wouldn't automatically get expedited approval when an employer submits a qualifying Form I-129 extension request.
The DHS believes this adjustment would allow for a comprehensive evaluation of every petition.
Experts expect a rise in requests for additional evidence (RFE), which means petitioners will need to spend more time gathering and submitting extra documentation and supporting materials.
"For workers who need an extension to keep working, the USCIS deference policy proposal could lead to a closer review. Officers could review facts that USCIS already accepted once before," the Vasquez Law firm stated on its website.
The firm clarifies that this proposal doesn't alter the fundamental eligibility criteria for a classification. Rather, it modifies how USCIS would evaluate subsequent filings.
“A worker may feel the practical effects even though the employer is often the petitioner...If USCIS requests more evidence, the employer may need to document the offered role, business operations, compensation, contracts, work location, and the worker's qualifications again. The worker may also need records showing continued maintenance of nonimmigrant status. Maintaining status means following the rules of the worker's temporary immigration category,” the firm added.
According to the US government, this rule would also create financial burdens for petitioners by extending the time needed for decisions and adding uncertainty about job continuity. The Department of Homeland Security projects that the rule would generate roughly $133,987 in new yearly expenses for petitioners, primarily from a rise in Requests for Evidence.
New annual cost to petitioners
The U.S. government states that this rule would create additional financial burdens for those filing petitions, as it would stretch out the time needed to make decisions and create more doubt about whether they can keep their jobs. According to the DHS, petitioners would face roughly $133,987 in new yearly expenses each year because of a rise in Requests for Evidence (RFEs).
"In addition, the rule would impose costs on USCIS by increasing the adjudicative workload and operational costs, as officers would spend more time reassessing eligibility issues previously reviewed and may issue an increased number of RFEs, thereby increasing overall resource demands," the proposal says.