H-1B Rule Change: Indians Hit Hardest

A Trump administration proposal to stop US immigration officers from deferring to earlier approvals when H-1B and L-1 workers seek extensions falls most heavily on Indian professionals, who account for nearly four in five H-1B approvals for continuing employment, according to US Citizenship and Immigration Services data.

The public comment period on the Department of Homeland Security proposal, "Removing Deference to Prior USCIS Determinations of Eligibility", closes on November 13. The notice was published in the Federal Register on October 14 under DHS Docket No. USCIS-2026-0529, and comments are accepted only through regulations.gov.

The rule would remove 8 CFR 214.1(c)(5), which requires officers to generally defer to a prior approval involving the same parties and facts unless there was a material error, a material change or new adverse information. It would cover all Form I-129 petitions, including H-1B, L-1, O-1, TN, E and P workers. The current rule stays in force until a final rule takes effect.

USCIS approved about 399,000 H-1B petitions in fiscal 2024, and 71 per cent were for beneficiaries born in India, its annual report to Congress said. Of about 258,000 approvals for continuing employment, the category that includes extensions, about 203,000, or 79 per cent, went to Indian-born workers.

DHS said in the notice that H-1B petitions make up more than 75 per cent of all Form I-129 filings. It estimated that about 208,000 petitions a year would be affected, and that removing deference could raise the rate of requests for evidence by about 3 percentage points, or roughly 6,000 additional requests a year.

Petitions receiving such requests took 64 days longer to process on average over the last four fiscal years, the notice said. DHS put the added cost to petitioners at about $134,000 a year.

The department argued that the deference regulation and policy "effectively shift the burden from the petitioner to the USCIS officer to justify departing from a prior approval."

It cited site-visit data showing combined non-compliance and fraud at about 22 per cent of H-1B extension sites visited in fiscal 2022 to 2025, when deference was in place, against about 17 per cent in fiscal 2018 to 2020, when it was not.

"This proposal would not prohibit USCIS officers from considering a prior approval where relevant," DHS said. "Rather, it would remove the requirement that officers begin from a position of deference to the prior approval."

The department acknowledged that employers and workers "may have made career and/or personal plans in the United States based on the assumption that they would be able to continue their employment and legal presence in the United States."

The deference policy has changed several times. It was introduced in 2004, rescinded in 2017, reinstated in 2021 and written into regulation in 2024.