Trump's H-1B 'deference' policy shake-up: Will visa renewals get tougher for Indian professionals?

Thousands of Indian professionals working in the United States could face tougher scrutiny, longer processing delays and greater uncertainty over their employment status as the Donald Trump administration has proposed scrapping a longstanding policy that allows immigration officials to rely on previous approvals while considering H-1B visa extensions.

The US Department of Homeland Security (DHS) has proposed removing the principle of "deference to prior approvals", under which officers of the US Citizenship and Immigration Services (USCIS) generally give weight to earlier eligibility decisions when reviewing extension petitions involving the same employer, employee and substantially unchanged circumstances.

If implemented, the proposed change would allow immigration officers to reassess applications independently, even when the applicant has already received approval and there has been no material change in employment conditions.

The move could have significant implications for Indian professionals, who account for approximately 70 per cent of H-1B beneficiaries in the United States.

The proposal, published on October 14, is open for public comments until November 13 and has not yet taken effect.

𝗪𝗵𝗮𝘁 𝗶𝘀 𝘁𝗵𝗲 𝗱𝗲𝗳𝗲𝗿𝗲𝗻𝗰𝗲 𝗽𝗼𝗹𝗶𝗰𝘆?

Under the existing framework, USCIS officers generally defer to previous decisions when adjudicating petitions seeking extensions of employment-based non-immigrant status, provided the relevant facts remain substantially unchanged.

The principle offers a degree of predictability to employers and foreign workers because immigration authorities have already examined the applicant's eligibility during the initial approval process.

For example, an Indian software engineer continuing in the same position with the same employer would ordinarily benefit from the earlier eligibility determination when seeking an extension.

However, deference does not guarantee approval. Immigration officers can already reopen eligibility questions when circumstances have materially changed, new adverse information emerges or an earlier decision involved a material error.

The Trump administration's proposal would remove the general requirement to give weight to previous approvals, allowing each extension petition to be examined afresh.

𝗜𝗻𝗱𝗶𝗮𝗻 𝘄𝗼𝗿𝗸𝗲𝗿𝘀 𝗳𝗮𝗰𝗲 𝗴𝗿𝗲𝗮𝘁𝗲𝗿 𝘂𝗻𝗰𝗲𝗿𝘁𝗮𝗶𝗻𝘁𝘆

Indian nationals constitute the largest group of H-1B beneficiaries, making them particularly exposed to changes in the American employment-based immigration system.

According to figures cited in reports on the proposal, Indians accounted for around 70 per cent of H-1B beneficiaries in fiscal year 2025.

An estimated 200,000 H-1B extension petitions involving Indian professionals are filed annually.

Immigration experts have warned that removing deference could result in an increase in Requests for Evidence (RFEs), through which immigration authorities seek additional documents or clarification before deciding applications.

Employers could be required to submit more extensive evidence establishing the continued eligibility of workers whose positions had previously been approved.

This could increase legal and administrative expenses, delay decisions and create uncertainty for employees whose continued stay in the United States depends on the timely approval of their petitions.

𝗣𝗮𝘀𝘁 𝗽𝗼𝗹𝗶𝗰𝘆 𝗿𝗲𝘃𝗲𝗿𝘀𝗮𝗹 𝗿𝗮𝗶𝘀𝗲𝘀 𝗰𝗼𝗻𝗰𝗲𝗿𝗻𝘀

The deference policy has previously been the subject of changes under different US administrations.

During Trump's first presidential term, the administration withdrew the policy in 2017, resulting in greater scrutiny of employment-based visa petitions.

Reports on the latest proposal note that H-1B extension denial rates subsequently climbed to as high as 24 per cent, compared with a more recent baseline of approximately 3.5 per cent.

However, those historical figures do not establish that a similar increase would necessarily follow the proposed changes in 2026.

Immigration specialists nevertheless caution that removing deference could revive some of the uncertainty experienced by foreign workers and employers during the earlier policy shift.

The impact could be particularly pronounced for professionals who have established long-term careers in the United States and depend on successive extensions while awaiting permanent residency.

𝗨𝗦 𝗰𝗶𝘁𝗲𝘀 𝗳𝗿𝗮𝘂𝗱 𝗽𝗿𝗲𝘃𝗲𝗻𝘁𝗶𝗼𝗻, 𝘄𝗼𝗿𝗸𝗲𝗿 𝗽𝗿𝗼𝘁𝗲𝗰𝘁𝗶𝗼𝗻

The Department of Homeland Security has defended the proposed change as a measure intended to strengthen immigration enforcement and improve scrutiny of employment-based petitions.

According to the administration, immigration officers should be able to independently examine the evidence in each application rather than relying on previous decisions.

The department has argued that the existing deference framework could reduce scrutiny of applications involving inaccurate information or potential fraud.

It has also cited the need to protect American workers and maintain the integrity of the immigration system.

Business groups and immigrant advocates, however, have raised concerns that the proposed changes could place additional burdens on legitimate employers and workers who have already complied with immigration requirements.

They argue that subjecting routine extensions to fresh scrutiny could create unnecessary administrative delays without necessarily improving compliance.

𝗛𝗶𝗴𝗵𝗲𝗿 𝗰𝗼𝘀𝘁𝘀, 𝗹𝗼𝗻𝗴𝗲𝗿 𝘄𝗮𝗶𝘁𝘀 𝗳𝗲𝗮𝗿𝗲𝗱

One of the principal concerns surrounding the proposal is the possibility of longer processing times for H-1B extensions.

Under the proposed system, employers could face more frequent requests to demonstrate that a position continues to qualify as a specialty occupation and that the employee satisfies the applicable eligibility requirements.

Additional scrutiny could increase the documentation required for applications and the cost of obtaining legal assistance.

For companies employing large numbers of foreign professionals, the changes could complicate workforce planning and the retention of experienced employees.

The consequences could also extend to workers' families.

If an extension is denied and the individual has no other lawful basis to remain in the United States, the worker and accompanying family members could face difficult decisions concerning relocation and employment.

The proposal also covers other employment-based non-immigrant categories, including L-1 visas used for intracompany transfers.

𝗡𝗲𝘄 𝗿𝘂𝗹𝗲 𝗻𝗼𝘁 𝘆𝗲𝘁 𝗶𝗻 𝗳𝗼𝗿𝗰𝗲

The proposed withdrawal of deference is still undergoing the regulatory process and should not be treated as an implemented change.

The Department of Homeland Security has invited public comments until November 13, 2026, after which it will consider the submissions before deciding whether to finalise the regulation.

Until any final rule takes effect, the existing framework governing deference to previous approvals remains applicable.

The proposed change comes amid broader adjustments to US immigration policy affecting skilled foreign workers and their families.

For Indian professionals, the immediate concern is not an automatic cancellation of existing H-1B approvals but the possibility that future extension applications could face substantially more intensive examination.

The outcome of the rulemaking process will determine whether the administration proceeds with the change and what additional requirements employers and foreign workers may ultimately face.