A key development occurred in December 2024, when the deference policy was officially written into regulation (the "H-1B modernization rule"), set to take effect on January 17, 2025. Once it takes effect, USCIS adjudicators must apply the deference policy to extension requests involving the same employer, the same employee, and the same job details.
USCIS can still decide not to defer to the previous approval if:
- There was a material error in the earlier approval.
- There has been a material change in circumstances or eligibility.
- New information raises doubts about eligibility.
Even in these situations, officers must explain why they are not deferring. Importantly, USCIS does not have to defer to decisions made by other agencies, such as the U.S. Department of State or Customs and Border Protection.
By turning the deference policy into a regulation, it becomes more difficult for future administrations to eliminate it quickly. Any attempt to rescind or change the policy now requires a lengthy rulemaking process that includes a public notice-and-comment period.
Key Takeaways for Employers
- Greater Predictability: The deference policy, now a regulation, gives employers more certainty that extension petitions will be approved if there are no major changes in the employee's role or the employer's situation.
- Potential Changes Ahead: A future administration could still try to rescind this rule, but they must follow a formal regulatory process, which takes time and offers employers some warning.
- File Extensions Early: Employers can submit extension petitions up to six months before a visa expires. Filing early can help avoid unexpected policy shifts and minimize risks of RFEs or denials.
Overall, the codification of the deference policy is a significant step that offers much-needed stability and efficiency in the U.S. immigration process. By planning ahead and staying informed, employers can take advantage of this improved predictability. As always, working closely with an immigration attorney ensures that extension applications are accurate, well-prepared, and filed promptly—especially during times when policy may evolve.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
