DHS Proposes Tougher Reviews for H-1B Renewal Petitions
Updated: 6 days ago
The U.S. Department of Homeland Security (DHS) has proposed eliminating deference to prior immigration approvals, a change that could subject more than 200,000 H-1B renewal petitions and other employment-based non-immigrant petitions to closer scrutiny.
Under the proposal, U.S. Citizenship and Immigration Services (USCIS) would no longer be required to generally defer to its previous eligibility determination when reviewing a renewal petition, even if the role, the employer, and the applicant all remain the same. If finalized, the change could give immigration officers greater discretion to reassess eligibility, even when a worker's employment circumstances have not materially changed.
The proposal adds to a broader period of uncertainty for H-1B workers, amid other immigration policy changes and increased scrutiny of employment-based visa petitions. For foreign professionals who rely on employer sponsorship to remain in the U.S., these developments highlight the importance of understanding both immediate visa requirements and long-term immigration options.
Another Challenge for H-1B Workers
Under current regulations, USCIS generally defers to a prior eligibility determination when reviewing a subsequent petition involving the same parties and underlying facts, subject to certain exceptions. DHS is now proposing to remove this regulatory requirement. If finalized, the change could allow immigration officers to reassess eligibility more extensively when adjudicating subsequent petitions, even when the worker remains with the same employer in the same position.
For H-1B workers, this could introduce additional uncertainty into the renewal process. Employers may need to provide more extensive supporting evidence, and workers could face additional scrutiny of their eligibility.
The proposal comes amid broader efforts to tighten oversight of the H-1B program. Other developments include changes to visa screening procedures and ongoing policy discussions concerning the cost and administration of employment-based immigration.
Although individual measures differ in their legal status and practical effects, the overall direction of policy changes makes it increasingly important for foreign professionals to monitor developments that could affect their employment and immigration plans.
H-1B Workers Face More Than Renewal Uncertainty
1. Employer Dependence and Layoff Risks
H-1B workers depend on qualifying employment and employer sponsorship to maintain their status, making layoffs an immigration concern as well as a financial one. Recent workforce reductions across major companies, including Amazon and other technology employers, highlight the uncertainty facing some foreign professionals. If employment ends, workers may have limited time to secure another qualifying position or explore alternative immigration options.
2. Proposed Elimination of the 60-Day Grace Period
DHS has proposed eliminating the discretionary 60-day grace period currently available to certain H-1B and other employment-based visa holders after their employment ends. If finalized, the change could significantly reduce the time affected workers have to find new employment, change status or make arrangements to leave the United States. The proposal remains subject to the rulemaking process.
3. Higher Costs and Increased Immigration Scrutiny
The administration has introduced a $100,000 payment requirement for certain H-1B petitions involving workers entering the United States from abroad, subject to applicable exceptions. Meanwhile, DHS has proposed ending deference to prior petition approvals, potentially increasing scrutiny of renewal petitions. These developments may create additional financial and administrative challenges for employers and foreign professionals.
4. Green Card Sponsorship Faces New Obstacles
Long-term residency through employer sponsorship is also facing uncertainty. In October 2026, the administration suspended several major technology and IT services companies, including Microsoft, Adobe, Cognizant and Infosys, from participating in the PERM labor certification process. Because PERM is generally a preliminary step in employer-sponsored EB-2 and EB-3 green card cases, the suspensions could disrupt permanent residency plans for affected employees.
Together, these developments highlight the challenges of relying exclusively on employer-sponsored immigration. For foreign professionals seeking long-term stability in the United States, exploring alternative pathways to permanent residency, including EB-5, may be worth considering.
A Long-Term Immigration Strategy Worth Considering
One of the biggest lessons from recent immigration policy changes is that the pathway available today may not look the same several years from now. For H-1B professionals seeking greater long-term flexibility, the EB-5 Immigrant Investor Program offers a pathway to U.S. permanent residency that does not require employer sponsorship for the immigrant petition. For eligible applicants already in the U.S., concurrent filing can make this option particularly attractive.
Concurrent Filing: Work and Travel Flexibility While Your Case Is Pending
When an EB-5 visa is immediately available and the applicant meets the applicable requirements, eligible investors may file Form I-485 (Adjustment of Status) while their Form I-526E petition is pending, including filing both applications together. They may also apply for an Employment Authorization Document (EAD) and Advance Parole (AP).
An EAD based on a pending I-485 can offer a significant difference from H-1B work authorization:
Greater employment flexibility: H-1B employment is generally tied to the petitioning employer and the terms of the approved classification. An adjustment-based EAD generally allows its holder to work for different employers or pursue other lawful employment, subject to the EAD's validity and applicable rules.
Less dependence on employer sponsorship: Eligible applicants with a valid adjustment-based EAD may have more flexibility when changing jobs or responding to employment disruptions, rather than relying exclusively on H-1B sponsorship.
Potential international travel flexibility: Eligible applicants may apply for Advance Parole to request permission to return to the United States after temporary international travel while their I-485 is pending. Travel should be carefully planned with immigration counsel.
These benefits can be especially valuable for professionals who want to continue building their careers without making their long-term immigration plans entirely dependent on one employer.
Choosing the Right EB-5 Investment Matters
Exploring EB-5 involves more than evaluating immigration eligibility. Investors must also carefully assess the underlying investment and the professionals managing it. Key considerations include project financing, job-creation methodology, management experience, repayment sources, investment terms and compliance with applicable USCIS requirements.
ARCFE is a USCIS-designated regional center established in 2013. Through our affiliation with iCross Capital, our platform combines EB-5 experience with a broader real estate investment and lending platform.
Since 2013, ARCFE has worked on more than 20 EB-5 projects, while the broader iCross platform has been involved in more than 60 real estate funds and developments. ARCFE is the first EB-5 regional center to complete post-RIA $800,000 capital repayments to eligible investors. These repayments demonstrate our experience managing EB-5 funds from deployment through project completion and repayment. For prospective EB-5 investors, however, the immigration strategy is only one part of the decision.
The $800,000 EB-5 investment is real capital, and where that capital is invested matters. Investors should evaluate not only the immigration requirements of a project, but also the underlying real estate, capital structure, senior debt, collateral, job creation cushion, project sponsors and the experience of the regional center and project team.
ARCFE's approach is grounded in this combination of immigration awareness and real-estate investment experience.
Plan Beyond the Next Renewal
The proposed elimination of deference to prior approvals is another development that H-1B workers should monitor. Combined with broader changes in immigration policy and increased scrutiny, it reinforces the importance of looking beyond the next visa extension when planning a long-term future in the U.S.
For foreign professionals whose ultimate goal is permanent residency, reviewing available immigration pathways early can help them better understand their options and prepare for changes that may affect their plans.
For H-1B professionals who want greater independence from employer sponsorship and less uncertainty around layoffs, EB-5 offers an alternative pathway to pursue U.S. permanent residency - one that puts their long-term immigration goals less directly in the hands of an employer.
Considering EB-5 for Your Family?
Speak with an iCross × ARCFE EB-5 specialist to discuss your immigration goals, timeline, and available investment opportunities.
