USCIS Wants to Stop Deferring to Its Own Approvals

USCIS approved your case. You apply to extend it, with the same employer and the same underlying facts. How much should that earlier approval count?

Under a new DHS proposal, officers would no longer be required to give it deference. This remains a proposal, not an effective change. It reaches qualifying Form I-129 requests beyond H-1B, including L-1, E and TN cases. It does not create a new H-1B lottery or automatically cancel existing approvals.

My first reaction? In practice, USCIS has never given prior approvals much meaningful deference in my experience. This feels like putting an official stamp on what officers already do.

That does not make the change harmless. A rule the agency fails to follow is still a rule we can hold it to. Removing it takes away that argument.

Deference is not a free pass

The current regulation generally requires deference when the parties and underlying facts are the same. It already permits a different decision for a material error, a material change in circumstances or eligibility, or new material information adversely affecting eligibility.

In other words, nobody is demanding that USCIS keep approving a fraudulent case because somebody missed the fraud last time. The existing rule already has an exit ramp.

DHS argues that deference nevertheless discourages officers from fully investigating eligibility and effectively makes them justify departing from an earlier approval. It says removing the requirement would help catch errors and protect program integrity.

That is an argument worth examining. But why is requiring an explanation for changing your answer a problem? If the facts have not changed, the government should be able to explain why its conclusion has.

The ten minute estimate deserves its own RFE

DHS projects roughly 6,044 additional requests for evidence annually. For the quantified evidence-gathering and submission burden, it assigns ten minutes per additional RFE, or $22.17. Other preparation and delay costs remain unquantified. See the proposal’s cost analysis.

Ten minutes might cover opening the RFE, reading it and swearing at your computer.

To be fair, that is not a claim that every substantive RFE response takes ten minutes. The estimate borrows from an earlier calculation concerning duplicative information. But that is precisely the problem: a narrow paperwork estimate tells employers very little about what renewed scrutiny could actually cost.

An RFE can mean pulling old records, coordinating with HR and managers, obtaining documents and paying an attorney to explain why the case still qualifies. The agency should measure that work before presenting a reassuringly tiny dollar figure.

DHS says its analysis found no additional denial-rate effect attributable to withdrawing deference. That deserves scrutiny. H-1B denial rates rose during that period, and DHS hasn’t supplied the detailed results needed to properly test its conclusion. Rising rates alone don’t prove causation, but the government should show its work.

Uncertainty has a price too

For an employer, an extension involves a person already doing a job. For that employee, it can affect plans for work, travel and family. Making the outcome less predictable could mean more legal spending, more disruption and more anxiety even when the case is ultimately approved.

My concern is that uncertainty itself may be part of the appeal: make lawful sponsorship exhausting enough and some employers will stop bothering. That is my interpretation of the incentives, not a proven government motive.

The proposal should be challenged on its explanation, evidence and real-world costs. USCIS should explain why the existing exceptions are inadequate and what employers and workers gain from relitigating unchanged facts.

For now, the deference rule remains in place. Keep prior filings and approvals, document any changes, and submit a complete extension case. The practical lesson is familiar: do not assume USCIS will remember why it approved you last time.

But we should not confuse that practical caution with a good reason to remove accountability. If USCIS wants another look at its own decisions, its reasoning deserves at least as much scrutiny as our clients’ paperwork.

Planning an H-1B or L-1 extension? Explore our H-1B and L-1A services, or schedule a consultation with Benjamin Hamilton.