The US Department of Homeland Security (DHS) has proposed scrapping a policy that generally requires US Citizenship and Immigration Services (USCIS) officers to defer to their previous approvals when reviewing certain work visa extension petitions involving the same parties and underlying facts. The proposed change could make it more challenging for Indian professionals to secure H-1B extensions.
The policy, known as "deference to prior approvals", provides a degree of predictability for employers seeking to retain foreign workers. The proposed regulation would remove the requirement for officers to give weight to earlier approvals, allowing them to reassess each petition on its merits, even when the circumstances have not materially changed.
Why Does The US Want To Change The Policy?
According to the DHS, removing the policy would strengthen scrutiny of immigration petitions, improve the integrity of the immigration system, and better protect US workers. The department argues that officers should independently examine the evidence in each case and request additional documentation when necessary.
The DHS also raised concerns that the existing policy could allow misleading or fraudulent petitions to receive less scrutiny. It cited USCIS data showing that, among H-1B worksite visits, the combined rate of identified non-compliance and fraud was 22.39 per cent from fiscal year 2022 to 2025, compared with 16.77 per cent from fiscal year 2018 to 2020, when the deference policy was not in place. The department acknowledged that other factors could also have contributed to the difference.
How Could The Proposed Rule Affect H-1B Extensions?
H-1B visa holders can generally stay in the US for up to six years, with the initial approval covering three years and the possibility of a further three-year extension. Certain workers are allowed to remain beyond this period if they are awaiting a decision on an employment-based green card or have an approved application but cannot obtain an immigrant visa number. This provision applies to many Indian professionals.
If the proposal is finalised, employers seeking extensions could face more requests for evidence, longer processing times, and a higher risk of denials. The change could also affect other temporary work visa categories, including L-1 visas used for intra-company transfers.
The potential consequences extend beyond employment. If an extension is denied and a worker has no other lawful basis to remain in the US, the individual and their family could face difficult decisions about relocating or living apart.
When Will The Proposed Rule Take Effect?
The proposal is open for public comments, which must be submitted by November 13, 2026. The DHS will consider feedback before deciding whether to finalise the regulation. Until then, the proposed change should not be treated as a final rule.