US higher education groups oppose proposal to end deference to earlier visa approvals

The American Council on Education (ACE) and 16 other higher education organisations have urged the US Department of Homeland Security (DHS) to withdraw a proposed immigration rule that would end the practice of giving weight to earlier visa approvals when deciding applications for extensions of nonimmigrant work authorisations.

In a comment letter submitted on Nov 13, the organisations warned that the proposed change could increase processing delays at US Citizenship and Immigration Services (USCIS), which is already facing significant operational pressure. They also cautioned that greater uncertainty over visa extensions could make the US a less attractive destination for international students and professionals.

Under the existing policy, USCIS officers generally give deference to an earlier approval when an extension request involves the same parties and substantially similar facts, unless there has been a material change, an error in the earlier decision or new information affecting eligibility.

The proposed rule, published by DHS in the Federal Register on Oct 14, seeks to remove this provision. If adopted, immigration officers would assess extension petitions on their own merits rather than being required to defer to an earlier approval. They could still consider previous decisions where relevant, but would no longer be expected to begin with a presumption in their favour.

The department has argued that the change would strengthen the integrity of the immigration system by ensuring that applicants and employers establish eligibility each time they seek an immigration benefit. It also says the proposal would help identify errors, inconsistencies and possible fraud in earlier approvals.

However, ACE and the other organisations said the change could result in more requests for evidence, longer adjudication periods and uncertainty for employers and workers seeking to continue their employment.

The proposal would apply to extension petitions filed using Form I-129 and would affect several categories of nonimmigrant workers, including H-1B visa holders. This could have implications for international graduates of US universities who secure employment with American companies and subsequently rely on H-1B status to continue working in the country.

The organisations also warned that the proposed change could affect international student recruitment and the retention of skilled graduates. They argued that students and researchers may increasingly consider countries offering greater certainty around employment and immigration pathways after completing their studies.

The proposed rule does not change the eligibility requirements for H-1B status or automatically end existing approvals. Instead, it would change how USCIS reviews applications to extend nonimmigrant employment authorisations.

The public comment period on the proposal closed on Nov 13. DHS will consider the submissions before deciding whether to revise, withdraw or finalise the rule.