US proposes tougher H-1B visa extension scrutiny and over 2 lakh foreign worker petitions could be affected annually

Thousands of H-1B visa holders and other foreign workers in the US could face closer scrutiny when applying to extend their work status under a new proposal from the Department of Homeland Security (DHS).

The proposal seeks to remove a regulation requiring US Citizenship and Immigration Services (USCIS) to give weight to its previous approval when reviewing an extension petition filed by the same employer for the same worker and job.

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According to estimates cited by immigration law firm Reddy Neuman Brown, around 208,429 petitions could be affected annually. The proposal covers H-1B, L-1, O-1, TN and E visa categories.

The proposal is open for public comments until November 13, 2026. It has not yet been finalised, and the existing regulation will remain in force unless DHS issues a final rule and it takes effect.

What is changing under the proposed rule?

Under the existing regulation, USCIS generally gives deference to an earlier approval when an employer files an extension application involving the same worker, employer and underlying facts.

An immigration officer can depart from the previous decision if there was a material error, a change in circumstances or new information affecting the worker's eligibility.

DHS now wants to delete Section 8 CFR 214.1(c)(5) and mark the provision as "Reserved".

If implemented, USCIS officers would be able to reassess extension applications without being required to follow the reasoning behind an earlier approval. This means they could revisit eligibility questions even when the employee continues working for the same employer in the same position.

Previous approvals could still be considered, but officers would no longer be required to give them deference.

Why does DHS want to remove the policy?

DHS argues that the existing policy could shift the burden of proof from employers to immigration officers. Under immigration law, employers filing petitions are responsible for establishing that workers qualify for the requested status.

The department also says deference could discourage officers from seeking additional evidence when eligibility has not been fully established. It argues that relying on an earlier approval could allow a questionable decision to influence subsequent applications.

The policy was first introduced through a USCIS memorandum in 2004. The agency rescinded it in 2017, reinstated it in 2021, and DHS subsequently incorporated it into the H-1B Modernisation Rule in 2024, which took effect in January 2025.

More evidence requests and possible delays

H-1B petitions account for more than 75% of all Form I-129 filings, according to DHS, making this category particularly exposed to the proposed change.

If finalised, the proposal could result in more requests for evidence (RFEs) during routine extensions. USCIS could ask employers for additional documents or reassess whether a position meets requirements such as the specialty occupation criteria.

DHS estimates that the change could generate around 6,044 additional RFEs annually. Its analysis also found no statistically significant difference in denial rates between periods when the deference policy was in place and when it was not.

For workers, additional evidence requests could mean longer processing times and greater uncertainty, including when planning overseas travel and applying for a fresh visa stamp.

Workers who file extension applications on time may generally continue working for up to 240 days after their I-94 expires while their applications remain pending, subject to applicable rules. Longer processing times could bring more cases closer to this limit.