United States: Trump Administration Again Proposes Elimination of Deference to Prior Approvals of Immigration Petitions

Since 2004, USCIS officers have generally been required to give deference to past I-129 petition approvals unless there was a substantial change in circumstances that affected the beneficiary’s eligibility for the nonimmigrant classification, the agency made a material error in the previous approval, or where new information adversely affected a beneficiary’s eligibility for the nonimmigrant status. 

In 2017, during the first Trump Administration, USCIS rescinded the deference policy and gave officers broader authority to readjudicate a foreign beneficiary’s eligibility for a nonimmigrant classification each time an extension request is filed – even in cases where there was no change in facts since the initial petition was approved. After the rescission, the rate of RFEs and denials of H-1B, L-1, and other nonimmigrant extensions increased significantly. 

The Biden Administration reinstated the deference policy in early 2021 and required officers to obtain supervisory approval before deviating from a prior approval on the same facts.  In late 2024, the Biden Administration codified and expanded the legacy deference policy in regulation in order to give employers greater predictability when filing Form I-129. The current deference regulation that the proposed rule seeks to eliminate applies to all Form I-129 adjudications by USCIS involving the same parties and facts, not just requests for extensions of stay.  In codifying the deference policy, the previous administration sought to make it more difficult to rescind, requiring a future administration to provide notice and an opportunity for public feedback under the rulemaking procedures of the Administrative Procedure Act.

In August 2025, the second Trump Administration proposed elimination of the deference regulation in the context of another rulemaking but did not pursue that proposal, and has instead now chosen to pursue elimination of deference through separate rulemaking.

The new proposal does not have any effect on current I-129 filings.  But if it is implemented, employers are likely to see a marked increase in requests for evidence and processing times, and an increased risk of petition denials.  After the first Trump Administration rescinded the prior deference policy in 2017, the H-1B extension denial rate reached a high of 24%; the current denial rate is around 3.5%. The L-1B denial rates reached a high of 35%; the current L-1B denial rate is approximately 9%. 

DHS says that it considered promulgating a new deference regulation that would give officers discretion whether to apply deference, but opted not to take this more moderate approach.  DHS acknowledges that the regulation would increase uncertainty and potential operational disruption for sponsoring employers and nonimmigrant employees, as well as costs.

Comments from the business community will be important to advise the Administration how the elimination of deference will negatively impact U.S. competitiveness.  If your organization is interested in providing feedback, Fragomen’s Government Strategies and Compliance Group can assist.