USCIS Proposes Ending Deference to Prior Approvals for Visa Extensions

USCIS has proposed a rule that would remove an important protection for employers and foreign workers: the requirement that officers defer to their own prior approvals when deciding an extension petition on the same facts. If finalized, the change would let an officer reassess a case from scratch each time it comes up for renewal, even when nothing about the job or the worker has changed since the last approval was granted. For anyone whose ability to keep working in the United States depends on a smooth extension, this is a development worth understanding, though it is still only a proposal and today’s rules remain in force.

What “Deference” Means and What Would Change

Under the current regulation, when USCIS adjudicates a Form I-129 petition, the workhorse form used for H-1B, L-1, O-1, TN, E, and P workers, involving the same parties and the same underlying facts as a previously approved petition, the officer is required to defer to that earlier approval. Deference is not absolute; an officer can depart from it where there was a material error in the first decision, a material change in circumstances, or new information that adversely affects eligibility. But the starting point is that a prior approval carries weight, which gives employers a measure of predictability when they file to extend a worker’s status.

The proposed rule would remove that requirement. An officer could still consider an earlier approval, but would no longer begin from a position of deference to it. In practice, that means USCIS would make a fresh eligibility determination on every extension, free to reexamine questions it had already decided, such as whether a role qualifies as a specialty occupation for H-1B purposes, whether a manager meets the L-1A criteria, or whether an O-1 worker still satisfies the extraordinary-ability standard. The change would reach every I-129 classification and would most directly affect extensions filed with the same employer.

Why This Rule Keeps Coming Back

Deference has had an unusually eventful history, and understanding it helps explain why the current proposal matters. USCIS first instructed its officers to defer to prior approvals in a 2004 memorandum, citing consistency and efficiency. That guidance was rescinded in 2017, reinstated in 2021, and then written into regulation in late 2024, which was meant to make it harder to undo by requiring any future rollback to go through formal rulemaking. The current proposal is that rollback, and it is the administration’s latest attempt to eliminate deference.

The history is not just procedural trivia, because the last time deference was removed, the effects were measurable. After the 2017 rescission, requests for evidence and denial rates for extension petitions rose significantly, with H-1B extension denials reaching a high around 24 percent, compared with roughly 3.5 percent today, and L-1B denials peaking near 35 percent against about 9 percent now. Those figures are the clearest available indication of what ending deference can do in practice, which is why employers are watching this proposal closely.

DHS’s Rationale

DHS’s argument for the change is that deference effectively shifts the burden of proof from the petitioner, where it belongs, onto the officer, discourages officers from requesting evidence they might otherwise seek, and allows an erroneous or even fraudulent initial approval to be carried forward through successive extensions. The agency estimates that deference currently applies to a little over 208,000 petitions a year and projects that removing it would generate several thousand additional requests for evidence annually. Notably, DHS says it considered a more moderate middle path, a rule that would give officers discretion whether to apply deference rather than removing it entirely, but chose not to pursue that approach.

What It Would Mean in Practice

For employers and foreign workers, the likely consequences cluster around predictability and timing. The most immediate is that every extension would face independent review, so an issue approved once could be reopened later, even with no change in the facts. That tends to produce more requests for evidence, and petitions that draw an RFE take considerably longer to resolve, which makes adjudication times harder to predict and workforce planning more difficult.

A subtler but serious risk involves continuity of work authorization. When an extension petition is timely filed with the same employer, the worker can generally keep working for up to 240 days past the expiration of their authorized stay while the petition is pending. Longer processing times raise the odds that a petition filed under regular processing will still be pending when that 240-day window closes, forcing the worker to stop working until approval comes through. For families, this risk is compounded by the recent end of automatic EAD extensions for many dependents, such as H-4 spouses, a change finalized just as this proposal was released.

The practical upshot is that initial filings and extension filings alike carry more weight than before. Because an earlier approval would no longer anchor later ones, the job descriptions, wage levels, worksite details, organizational charts, and qualifications in each petition need to be accurate and sustainable over the life of the employment, since inconsistencies between filings would be far more likely to be questioned. Employers would be well served to prepare extensions as complete, stand-alone filings rather than leaning on a prior approval notice, to identify upcoming extensions early enough to absorb a possible RFE, and to consider premium processing where speed against the 240-day clock matters.

What Happens Next

None of this is in effect yet. The current deference regulation remains in force unless and until a final rule is published and takes effect, and the proposal carries a 30-day public comment period, with comments due in mid-November. After that, DHS would need to review the comments and issue a final rule before anything changes, a process that can take months. For now, employers should keep filing under existing rules while beginning to review their upcoming extensions and filing practices, and may want to budget for the possibility of higher extension costs, including RFE responses and premium processing, down the line.

A Brief Note on EB-5

For EB-5 investors, this proposal has little direct bearing, and it is worth being clear about why. EB-5 petitions are not Form I-129 filings, so the deference rule does not apply to the I-526E or the I-829, and an investor’s EB-5 case would not be affected by this change. The relevance, where it exists, is indirect: many EB-5 investors come to the program while holding an H-1B, L-1, or similar status, and some maintain that status while their EB-5 case is pending or have family members who rely on it. For those individuals, a tougher extension environment is one more factor in the broader immigration picture, and arguably one more illustration of why a permanent path that does not depend on repeated, discretionary extensions holds appeal. But the EB-5 petition itself sits outside this rule.

Final Thoughts

The proposal to end deference to prior approvals would make every I-129 extension a fresh examination rather than a continuation of a settled one, and history suggests that shift tends to bring more requests for evidence, longer processing, and higher denial rates. The rule is not final, the comment period runs into mid-November, and current practice continues in the meantime. But the direction is clear enough that employers and sponsored workers would be wise to treat upcoming extensions as full filings, prepare them early, and plan for the possibility of a slower, more scrutinizing process. As always, anyone whose status may be affected should review their specific situation with qualified immigration counsel.

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