Proposed US Immigration Rule Could Disproportionately Affect Indian H-1B Workers

WASHINGTON–A Trump administration proposal to eliminate a longstanding policy that gives weight to previous immigration approvals when reviewing H-1B and other employment visa extensions could disproportionately affect Indian professionals, who account for nearly 80% of H-1B approvals for continuing employment in the United States.

The Department of Homeland Security is seeking to remove a regulation that generally requires immigration officers to defer to earlier approvals when employers request extensions for foreign workers under substantially unchanged circumstances.

The proposal, titled “Removing Deference to Prior USCIS Determinations of Eligibility,” was published in the Federal Register on October 14. The public comment period is scheduled to close November 13.

Under the proposed rule, U.S. Citizenship and Immigration Services (USCIS) officers would no longer be required to give deference to previous approvals when evaluating new petitions involving the same employer, employee and underlying facts.

The change would apply to petitions filed using Form I-129, covering several employment-based visa classifications, including H-1B, L-1, O-1, TN, E and P visas.

Currently, immigration officers are generally required to respect previous eligibility determinations unless there has been a material change in circumstances, a significant error in the earlier decision or newly discovered adverse information.

The Trump administration argues that removing this requirement would give immigration officers greater discretion to independently assess each petition, even when an employer is seeking to extend an existing worker’s status.

The potential impact on Indian professionals is particularly significant because of their overwhelming representation among H-1B visa holders.

According to USCIS data submitted to Congress, the agency approved approximately 399,000 H-1B petitions in fiscal 2024, with Indian-born beneficiaries accounting for 71% of those approvals.

The concentration was even higher among petitions for continuing employment, a category that includes visa extensions.

Of approximately 258,000 continuing-employment petitions approved during the fiscal year, about 203,000, or 79%, involved Indian-born workers.

These figures suggest that Indian professionals could face a disproportionate share of any additional scrutiny, documentation requirements or processing delays resulting from the proposed policy change.

DHS estimates that H-1B petitions account for more than 75% of all Form I-129 filings, making them the largest category potentially affected by the rule.

The department projects that approximately 208,000 petitions annually could be affected by eliminating the deference requirement.

It also estimates that the policy change could increase the rate of requests for evidence by approximately three percentage points, resulting in roughly 6,000 additional requests each year.

Such requests require employers or applicants to submit additional documentation before immigration officials make a final decision.

According to DHS, petitions receiving requests for evidence took an average of 64 additional days to process over the previous four fiscal years.

The department estimated that the additional financial burden on petitioners would total approximately $134,000 annually.

In defending the proposal, DHS argued that the existing policy places too much weight on previous decisions and limits immigration officers’ ability to independently evaluate eligibility.

The current regulation and policy “effectively shift the burden from the petitioner to the USCIS officer to justify departing from a prior approval,” the department stated.

DHS also cited immigration compliance inspections to support its position.

According to the department, site visits conducted between fiscal 2022 and fiscal 2025, when the deference policy was in effect, identified combined noncompliance and fraud rates of approximately 22% among inspected H-1B extension sites.

That compared with approximately 17% during fiscal 2018 through fiscal 2020, when the deference policy was not in place.

The department emphasized that eliminating mandatory deference would not prevent immigration officers from considering previous approvals when reviewing extension requests.

“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 administration also acknowledged that the proposed change could create uncertainty for foreign workers and American employers who have relied on previous immigration approvals when making long-term decisions.

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,” DHS stated.

The policy governing deference to previous immigration decisions has undergone several changes over the past two decades.

It was first introduced in 2004, withdrawn during Trump’s first administration in 2017 and reinstated in 2021. The Biden administration formally incorporated the policy into federal regulations in 2024.

The latest proposal would reverse that regulatory requirement, potentially subjecting employment visa extensions to more extensive independent reviews.

However, the proposed changes are not yet in effect. The existing deference regulation will remain in place unless and until DHS adopts a final rule.

Members of the public, employers and other interested parties can submit comments through November 13 under DHS Docket No. USCIS-2026-0529 on regulations.gov. (Source: IANS)