Indian professionals working in the United States on H-1B visas could face closer scrutiny when seeking extensions under a proposal by the US Department of Homeland Security (DHS) to end the practice of giving deference to previous immigration approvals.
Published in the Federal Register on October 14, 2026, the proposed rule would remove a requirement that US Citizenship and Immigration Services (USCIS) generally rely on earlier eligibility decisions when reviewing subsequent petitions involving the same employer, worker and underlying facts. If adopted, officers could reassess each petition independently, even when the circumstances remain unchanged.
The proposal is open for public comments until November 13, 2026. It has not taken effect, and the existing regulation remains in force while the department considers feedback.
What is the deference to prior approvals policy?
Under the existing regulation, USCIS generally gives weight to an earlier approval when an employer files a subsequent petition involving the same worker and the same underlying facts. Officers can depart from that approach if the earlier decision contained a material error, circumstances have materially changed or new information adversely affects the applicant's eligibility.
For an H-1B worker whose job and employment conditions remain unchanged, the policy provides some predictability when the employer applies to extend their stay. An earlier approval does not guarantee that a future petition will succeed, but it limits the need to revisit an established decision without a relevant reason.
The proposed rule would remove that requirement to defer to the earlier decision. USCIS officers would still be able to consider previous approvals, but they would not be required to give them particular weight. Each petition would be assessed on the evidence and eligibility requirements applicable at the time of adjudication.
Why does the US want to change the policy?
The DHS says that every immigration petition should be assessed on its current evidence and that earlier approvals should not shield applications from further scrutiny. The department says the change would strengthen the integrity of the immigration system and better protect US workers.
The department has also cited data from worksite visits conducted by USCIS. According to the proposal, the combined rate of identified non-compliance and fraud was 22.39 per cent during fiscal years 2022 to 2025, compared with 16.77 per cent during fiscal years 2018 to 2020, when the deference policy was not in place. The department acknowledged that other factors could have contributed to the difference. These figures do not establish that the deference policy caused the change.
How could the proposal affect Indian H-1B workers?
India accounts for a large share of H-1B approvals for continued employment in the US. Data from USCIS showed that Indian-born beneficiaries received 226,000 approvals in this category in fiscal year 2025, representing 77.6 per cent of the total. Chinese-born beneficiaries accounted for 31,581 approvals, or 10.8 per cent.
If the proposal becomes law, Indian professionals seeking extensions could face several practical difficulties.
More requests for evidence: Employers may need to submit additional documents to establish that a worker continues to meet the visa requirements, even when the job and employment arrangements remain unchanged.
Longer processing times: Additional scrutiny could delay decisions on extension petitions and make workforce planning more difficult for employers.
Greater risk of denial: An earlier approval would carry less weight in a subsequent review. A worker would still need to establish eligibility under the applicable rules.
Uncertainty for families: If a principal worker's extension is denied and they have no other lawful basis to remain in the US, their family may also face difficult decisions about their immigration status and whether to relocate.
These are potential consequences, not guaranteed outcomes. The proposal does not automatically invalidate existing H-1B approvals or mean that every extension will be denied.
Which other visa categories could be affected?
The proposal applies to petitions filed using Form I-129, which covers several employment-based non-immigrant visa categories, including H-1B specialty occupation workers, L-1 intracompany transferees and O-1 workers with extraordinary ability. It is not limited to H-1B extensions.
H-1B workers can generally receive an initial period of up to three years, followed by an extension of up to another three years. Some workers qualify for extensions beyond the usual six-year limit under provisions linked to their employment-based green-card process.
These longer extensions are relevant to Indian professionals, who can face extended waits for employment-based permanent residence because of per-country limits and visa backlogs. A fresh assessment of each extension petition could add uncertainty for workers who need to maintain lawful status while awaiting permanent residence.
Has the US tried this before?
Yes. USCIS first introduced the deference policy in 2004. The first Trump administration rescinded it in 2017, allowing officers greater latitude to reassess eligibility in subsequent petitions. The Biden administration restored the policy in 2021, and the DHS formally codified it in regulations in December 2024.
The current proposal would reverse that regulatory requirement. It follows earlier efforts to change the policy, including a proposal in 2025 that was not pursued.
The proposed change does not eliminate the H-1B visa programme. It concerns how immigration officers review repeat petitions and the weight they give to previous approvals.
What happens next?
The DHS is accepting public comments until November 13, 2026. It will consider the submissions before deciding whether to issue a final rule. Until then, USCIS remains bound by the existing regulation on deference to prior approvals.
For Indian professionals working in the US, the immediate development is a proposed change, not a new requirement already in force. If adopted, it could make extension applications less predictable by allowing officers to reassess eligibility without giving earlier approvals the same weight.
The outcome will depend on the final rule and how USCIS implements it.
