U.S. immigration policies continue to evolve, often with far-reaching implications for employers and foreign national workers alike. One recent and significant development is the codification of the USCIS deference policy under the H-1B modernization rule, which will take effect on January 17, 2025.
This move formalises a policy that has long shaped adjudication practices for temporary nonimmigrant visa petitions and provides employers with more predictability in extending visas for foreign national employees.
First introduced in 2004, the deference policy instructed U.S. Citizenship and Immigration Services (USCIS) officers to “defer” to prior approvals when adjudicating extension petitions filed by the same employer for the same worker, provided that no material changes had occurred.
This meant that if USCIS had already thoroughly reviewed and approved a petition — for example, an H-1B, L-1, O-1, or TN visa — it would typically approve the extension without requesting substantial new evidence.
The policy streamlined processing by:
In 2017, the deference policy was rescinded. This change disrupted established practices and led to:
According to USCIS data:
For employers accustomed to efficient extensions, the rescission marked a shift to a more uncertain and burdensome process.
In April 2021, USCIS reinstated the deference policy. The agency clarified that any deviation from prior approvals would require supervisory review.
As a result:
This reinstatement highlighted the practical benefits of the policy for both employers and the immigration system.
In December 2024, the Biden administration finalized the H-1B modernization rule, codifying the deference policy into regulation.
Under this rule:
Codification ensures that rescinding the policy in the future would require the formal rulemaking process, including notice and comment, making abrupt reversals less likely.
Pros:
Cons:
The codification of the deference policy under the H-1B modernization rule represents a significant step in restoring predictability for U.S. employers and foreign national employees. By embedding the policy in regulation, the Biden administration has ensured a higher level of stability — at least in the short term.
Employers should act strategically, filing eligible extensions early and working closely with immigration counsel to mitigate potential risks in the event of future policy shifts.
This move formalises a policy that has long shaped adjudication practices for temporary nonimmigrant visa petitions and provides employers with more predictability in extending visas for foreign national employees.
What Is the USCIS Deference Policy?
First introduced in 2004, the deference policy instructed U.S. Citizenship and Immigration Services (USCIS) officers to “defer” to prior approvals when adjudicating extension petitions filed by the same employer for the same worker, provided that no material changes had occurred.
This meant that if USCIS had already thoroughly reviewed and approved a petition — for example, an H-1B, L-1, O-1, or TN visa — it would typically approve the extension without requesting substantial new evidence.
The policy streamlined processing by:
- Reducing repetitive requests for documentation.
- Creating transparency and predictability for employers.
- Allowing USCIS to allocate resources toward new or complex petitions.
The Rescission of the Policy and Its Consequences
In 2017, the deference policy was rescinded. This change disrupted established practices and led to:
- A sharp rise in Requests for Evidence (RFEs).
- More denials, even for straightforward extensions.
- Higher costs and delays for employers and employees.
According to USCIS data:
- The H-1B RFE rate more than doubled, peaking at 40.2% in FY2019.
- Denials of H-1B extensions also more than doubled during this period.
For employers accustomed to efficient extensions, the rescission marked a shift to a more uncertain and burdensome process.
Reinstatement in 2021
In April 2021, USCIS reinstated the deference policy. The agency clarified that any deviation from prior approvals would require supervisory review.
As a result:
- The RFE rate dropped to 8.6%, restoring greater predictability.
- Employers regained confidence in the stability of extension petitions.
This reinstatement highlighted the practical benefits of the policy for both employers and the immigration system.
Codification Under the H-1B Modernization Rule
In December 2024, the Biden administration finalized the H-1B modernization rule, codifying the deference policy into regulation.
Under this rule:
- USCIS officers must apply the deference standard when adjudicating extensions filed by the same parties under the same facts.
- Deference may be withheld only if:
- There was a material error in the prior approval.
- There has been a material change in circumstances.
- New, adverse information impacts eligibility.
- USCIS will consider but not defer to prior determinations made by Customs and Border Protection or the Department of State.
Codification ensures that rescinding the policy in the future would require the formal rulemaking process, including notice and comment, making abrupt reversals less likely.
Takeaways for Employers
- Predictability Restored: Employers and employees can expect more consistent adjudication of extension petitions.
- Time-Limited Opportunity: While the incoming administration could attempt to rescind the rule, doing so would take time. Employers should use this period to prepare and file eligible extensions early.
- Filing Window: Extensions can generally be filed six months before expiration — a crucial consideration for proactive planning.
Pros and Cons of the Codified Deference Policy
Pros:
- Provides stability, transparency, and predictability for employers.
- Reduces RFEs and denials for straightforward extension petitions.
- Allows USCIS to focus resources on new or complex cases.
- Codification makes future rescission more difficult and time-consuming.
Cons:
- Future administrations could still rescind the rule, creating uncertainty.
- Deference is not guaranteed in cases involving material changes or errors.
- Employers must still be prepared to document changes thoroughly.
Final Thoughts
The codification of the deference policy under the H-1B modernization rule represents a significant step in restoring predictability for U.S. employers and foreign national employees. By embedding the policy in regulation, the Biden administration has ensured a higher level of stability — at least in the short term.
Employers should act strategically, filing eligible extensions early and working closely with immigration counsel to mitigate potential risks in the event of future policy shifts.
Does this mean the next administration can’t just cancel the policy like before? Or would they need to go through a full rulemaking process again? Just trying to understand how “codified” it really is.
PoLiCies come n GO!!