The Department of Homeland Security (DHS) has proposed eliminating a policy that gives weight to previous approvals when adjudicating extension requests for H-1B visa holders and other foreign workers with temporary immigration status. This potentially subjects them to renewed scrutiny even when their employment circumstances remain unchanged.
The proposed rule, released on Oct. 13, 2026, would revive an approach adopted during President Donald Trump’s first administration, according to Bloomberg Law. The policy would require greater scrutiny of extension requests rather than relying on earlier determinations of eligibility.
The proposal marks another potential change to the H-1B immigration framework, which affects foreign professionals employed by U.S. companies, including Indian nationals working in technology, engineering, healthcare and other specialized occupations.
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What is the prior-deference policy?
Prior deference is the practice of giving weight to an earlier immigration approval when the same worker seeks an extension under substantially similar circumstances.
Under this approach, U.S. Citizenship and Immigration Services (USCIS) generally gives deference to a previous favorable determination when reviewing a subsequent petition involving the same parties and underlying facts, unless an exception applies.
The policy can reduce the need to revisit issues already examined in an earlier adjudication. It does not guarantee an extension or prevent USCIS from reviewing a petition when circumstances or eligibility requirements warrant additional scrutiny.
The Biden administration restored the policy through guidance in 2021. A broader overhaul of H-1B regulations in 2024 subsequently incorporated the deference policy into federal regulations, Bloomberg Law reported.
The latest DHS proposal would reverse that approach and restore a policy associated with Trump’s first term.
Potential implications for H-1B workers
If adopted, the proposal could make the extension process less predictable for some H-1B workers and their employers. Previous approval would no longer receive the same regulatory deference, potentially requiring applicants and sponsoring employers to establish eligibility again under the applicable standards.
H-1B status is generally granted to foreign professionals working in specialty occupations that require highly specialized knowledge and at least a bachelor’s degree or its equivalent in a directly related field. Employers must petition USCIS on behalf of prospective workers.
For Indian professionals, who make up a significant share of H-1B beneficiaries, changes to extension procedures could have implications for continued employment and long-term immigration planning.
Employers may also face additional administrative work if they must provide more documentation or address eligibility questions that were considered during previous approvals.
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However, the proposal does not itself eliminate H-1B extensions or automatically revoke existing approvals. Its impact would depend on the final regulatory language and how USCIS applies the resulting rules.
Proposal follows changes to immigration rules
The proposed change comes amid broader efforts by the Trump administration to revise policies governing temporary foreign workers and employment authorization.
The DHS proposal would reverse the regulatory approach established in 2024 and return to a system that places less weight on prior favorable adjudications when reviewing extension requests.
The proposal is not yet a final rule. Its publication begins the regulatory process, during which the department may receive public comments before deciding whether to issue a final regulation. For H-1B workers and their employers, the key question will be whether the administration finalizes the proposal and how the new requirements affect pending and future extension petitions.