USCIS Proposes Ending Deference to Prior Visa Approvals
The agency also reaffirms elimination of automatic work permit renewals
On Oct. 14, U.S. Citizenship and Immigration Services (USCIS) issued both a proposed rule to eliminate deference to prior approvals of immigration filings; and a final rule codifying the elimination of certain automatic extensions of employment authorization documents (EADs).
Ending Deference to Prior Visa Approvals
USCIS is proposing to require officers to independently reassess eligibility for temporary work visas, even when the worker, employer, and underlying circumstances remain unchanged, a move that could increase scrutiny, processing delays, and uncertainty for employers sponsoring foreign talent.
USCIS estimates that approximately 208,000 extension applications annually would be affected, with H-1B petitions accounting for about 75 percent of the total. The proposal would also affect H-2A agricultural workers, H-2B seasonal workers, L-1 intracompany transferees, and TN professionals from Canada and Mexico.
The agency will accept public comments for 30 days. The proposal would not immediately change how USCIS adjudicates pending or future petitions; the agency would need to issue a final rule before implementing the change.
Under the current regulation, USCIS generally defers to previous approvals involving the same employer, worker, and material facts unless there was a significant change in circumstances, a material error in the earlier decision, or new information that adversely affects eligibility.
The Biden administration codified and expanded the policy in late 2024, seeking to provide employers with greater predictability when sponsoring foreign workers. The proposal now seeks to reverse that approach.
The agency stated that eliminating deference would strengthen oversight and ensure that employers continue to demonstrate eligibility for immigration benefits, placing the burden of proof on petitioners and supporting efforts to protect U.S. workers and maintain the integrity of the immigration system.
The issue has a history of shifting policy. The first Trump administration rescinded the deference policy in 2017, broadening officers’ authority to reassess eligibility with each extension request. The Biden administration reinstated the policy in 2021 before codifying it in 2024.
After the 2017 rescission, denial rates for H-1B and L-1 extensions increased significantly. H-1B extension denials reached 24 percent, while L-1 denials reached 35 percent. Current rates are approximately 3.5 percent and 9 percent, respectively, according to USCIS.
If finalized, the proposal could make retaining foreign employees more difficult, even when their roles and qualifications have not changed. USCIS acknowledges that the policy could increase costs, uncertainty, and operational disruptions for employers and workers.
“For employers it would mean more evidence requests, additional preparation costs, and less predictable staffing and project planning,” said Angelo Paparelli, an immigration attorney at Vialto Law, based in Los Angeles. “For sponsored workers the foreseeable consequences would be greater uncertainty about continued employment and the career and family plans built around it.”
Until a final rule is issued, the existing deference policy remains in effect. But HR and immigration teams should prepare for the possibility of more requests for evidence, longer adjudication timelines, more extensive documentation requirements, and increased legal and administrative expenses.
Ending Automatic EAD Extensions
USCIS is also finalizing a policy that eliminates the automatic extension of EADs for certain foreign nationals renewing their work permits, reinforcing the risk of employment gaps for workers whose applications remain pending. The final rule takes effect Oct. 14 but does not introduce any new operational change for most employers.
The final rule codifies without changes an interim final rule issued in October 2025 that eliminated the maximum 540-day automatic extension for eligible EAD renewal applications filed on or after Oct. 30, 2025. The policy took effect last year, and the final rule makes the change permanent after USCIS considered public comments.
Under the rule, affected employees generally lose work authorization when their EAD expires and cannot resume employment until USCIS approves their renewal, unless they have another basis for work authorization. The final rule does not affect EADs automatically extended before Oct. 30, 2025.
The policy affects several categories of foreign nationals, including adjustment of status applicants, H-4 spouses, and individuals with Temporary Protected Status.
The change does not affect spouses of L-1 workers who are authorized to work incident to their immigration status. Their work authorization can continue beyond the expiration of an EAD as long as their underlying status remains valid. F-1 students applying for a science, technology, engineering and mathematics (STEM) optional practical training extension also remain eligible for a separate 180-day automatic extension when they timely file their applications.
The elimination of the 540-day extension could create challenges for employers seeking to retain employees whose work authorization renewals are delayed.
USCIS reported that, as of June 30, more than 432,000 EAD renewal applications had been pending for at least six months, including more than 91,000 that had been pending for more than 18 months. Because most applicants cannot submit renewal applications more than 180 days before their current EAD expires, lengthy processing times can leave employees unable to work while awaiting approval.
Affected employees, including H-4 EAD holders and adjustment of status applicants, should file renewal applications as early as permitted and monitor their cases closely. HR teams should also establish processes to track expiration dates, communicate renewal timelines, and assess potential workforce disruptions.
Employers must ensure that employees do not continue working after their authorization expires unless they have another valid basis for employment.
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