The Department of Homeland Security has recently proposed a new rule that looks to remove a longstanding immigration policy covering petitions for nonimmigrant employment visas. This new regulation, if passed, would make it so that the U.S. Citizenship and Immigration Services (USCIS) would not have to defer to previous eligibility determinations when it reviews new I-129 applications concerning the same parties and facts.
Current Regulations
Through the current system, USCIS works under the assumption of deference. This means that, when a sponsoring employer files an extension or some other change through Form I-129 for an employee they already have, they don’t need to show that it comes with a change in job duties or qualifications—the adjudicators typically approve the change based on the fact that the petition had already been approved. This is what is called “deference.”
In this framework, only three situations warrant overturning a prior approval when an extension is requested:
- A material error was present in the original approval petition
- A material change in job duties or requirements has occurred
- New material information surfaces about the beneficiary’s eligibility
USCIS presuming eligibility based on prior approval has provided sponsoring employers with a level of confidence and predictability when building and managing their nonimmigrant workers.
What Will Change If the Rule Passes
If it’s passed, the new rule will change how USCIS processes changes to these employment nonimmigrant petitions. Adjudicators who are reviewing I-129 petitions would no longer start from a position of prior eligibility by default. In other words, they won’t be required to take the fact that a petition has been approved into account when evaluating changes or extensions.
The USCIS officer would still have the discretionary authority to choose to take the previous approval into account, but they would not legally need to defer to the prior decision. Ultimately, each change or extension is evaluated from scratch just like the initial petition.
How This Could Impact You
Sponsoring employers need to understand that this new rule is just a proposal at the moment. The current deference framework is still in effect and will continue to be in effect. That being said, sponsors should not consider a previous approval as an absolute guarantee that any follow-up I-129 changes will also be approved.
This proposed rule has been published in the Federal Register and the DHS has opened a formal 30-day public comment period where stakeholders can review the notice and provide their comments, questions, and concerns about how the removal of deference could affect business operations, costs, and timelines.
To learn more about how this could impact you, speak to an experienced immigration attorney
