The proposed changes by the Trump administration regarding the H-1B visa extension process could significantly affect Indian professionals working in the United States. For many, obtaining an extension is not merely a procedural step; it is essential for maintaining their legal status and continuing their journey towards permanent residency. Currently, numerous Indian workers depend on multiple extensions as they navigate a lengthy backlog for employment-based green cards.

The administration’s proposal aims to eliminate the immigration policy known as “deference to prior approvals.” This policy currently allows the US Citizenship and Immigration Services (USCIS) to consider previous favourable decisions when reviewing extension petitions involving the same employer and worker. The proposed change could lead to increased scrutiny of extension applications, even for those whose previous petitions were approved.

Rajiv Dabhadkar, founder of the National Organisation for Software and Technology Professionals (NOSTOPS), highlighted that while the removal of deference may not alter green card queue positions, it could influence how subsequent petitions are evaluated. Immigration attorney Bhumireddy Sai Srinivas Reddy expressed concerns that this proposal could further complicate the already arduous wait for permanent residency for Indian H-1B holders.

Details of the Proposed Changes

The Department of Homeland Security (DHS) and USCIS have suggested removing a provision under 8 CFR 214.1(c)(5), which mandates that the agency give deference to prior approvals when assessing extension requests involving the same parties and underlying facts. The DHS states that while deference is not an unconditional guarantee of approval, the proposed changes would allow officers to reassess a worker’s eligibility more freely.

Employers typically use Form I-129 to petition for foreign workers in various temporary employment categories, including H-1B and L-1 visas. If the proposal is finalised, USCIS officers would still consider previous approvals but would no longer be required to start from a position of deference. This shift could significantly alter the framework for reviewing extension petitions without changing the fundamental eligibility criteria for each visa category.

Indian professionals, who make up approximately 70 per cent of all H-1B beneficiaries, could face increased challenges in the green card process. The H-1B visa is generally valid for three years, with the possibility of extensions, but the backlog for employment-based green cards can stretch for decades. A recent analysis indicated that nearly one million Indians are currently in the employment-based green card backlog, highlighting the potential impact of the proposed changes.

Potential Consequences for Employers and Workers

The proposed changes could impose additional documentation requirements on employers, necessitating more detailed evidence related to job duties, compensation, and workers’ qualifications. Employers may need to demonstrate that their employees continue to meet the eligibility criteria for their respective visa categories, rather than relying on prior approvals.

According to estimates, the proposed rule could result in nearly $133,987 in additional annual costs for petitioners and lead to approximately 6,044 extra requests for evidence each year. Delays caused by these requests could adversely affect workers whose employment authorisation relies on timely decisions, potentially leading to interruptions in their work status.

The Trump administration has justified the proposal by arguing that the existing deference policy may hinder immigration officers from independently evaluating applications. The DHS contends that removing this requirement would ensure a thorough review of facts and evidence in each case to confirm ongoing eligibility for immigration benefits.

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