US proposes ending deference to past H-1B approvals
The proposed policy which also covers other work visas such as L-1 (intra company transfers), is currently open for public comments and could be finalised in a few months. 2.26 lakh H-1B applications for Indian-born beneficiaries were approved for continuing employment in fiscal year 2025, accounting for 77.6% of all petitions approved in that category, according to data released earlier this year by USCIS. China was a distant second, with 31,581 petitions, or 10.8%. The deference policy, introduced in 2004, provides a degree of predictability for employers seeking to retain foreign workers. The first Trump administration rescinded the deference policy in 2017, giving officers greater latitude to reassess eligibility with every extension request, even when the underlying facts remained unchanged. The Biden administration reinstated the deference policy in 2021 and codified and expanded it in regulations in late 2024 to provide employers greater predictability. In August 2025, the second Trump administration proposed eliminating the regulation as part of another rulemaking but did not pursue it. Following the 2017 rescission of the policy, the H-1B extension denial rate reached 24%, compared with around 3.5% currently; the L-1B denial rate peaked at 35%, against approximately 9% at present, according to Fragomen.
“If implemented, the change could lead to greater scrutiny of repeat applications even when a worker’s employment circumstances have not materially changed,” said Mitch Wexler, senior counsel at Fragomen, a global immigration law firm. The Trump administration has proposed scrapping a policy that generally requires US immigration officers to defer to their own previous approvals of work visa petitions, a move that could make it challenging for Indian professionals to secure H-1B extensions. The implications could be significant for Indian professionals. This was followed by a significant rise in requests for evidence (RFEs) and denials. The Trump administration’s recent move marks its third attempt to eliminate deference. The proposal has heightened anxiety among the Indian diaspora, with the uncertainty extending well beyond the workplace. If an H-1B extension is denied and the worker has no other lawful basis to remain in the US, families could be forced to confront the prospect of leaving behind homes, children’s schools, established careers and community networks built over years. For households with both spouses working or children growing up in the US, the consequences could be particularly disruptive, forcing difficult decisions about whether the entire family relocates or whether family members face a period of separation.
Under the existing approach, officers generally defer to an earlier approval unless there has been a material change in circumstances, a significant error in the earlier decision or new information that adversely affects eligibility.