Our Comment: Removing Deference to Prior USCIS Determinations of Eligibility
We support this proposed rule and urge DHS to finalize it without delay.
The H-1B program was established to allow employers to hire foreign workers temporarily for qualifying specialty occupations. It was not intended to become a revolving door through which employers could continually extend foreign employment while American workers struggle to find jobs in their own country.
Yet renewals and extensions now account for the majority of H-1B petitions approved by USCIS. In fiscal year 2025, approximately 72% of approved H-1B petitions were for continuing employment. This is not a marginal feature of the program. It is central to how the program operates. When most approvals concern existing workers, the integrity of the renewal process becomes fundamental to the integrity of the entire system.
The contrast with American workers deserves attention. In January 2026, median tenure with an employer was three years for workers ages 25–34, according to the Bureau of Labor Statistics. Young Americans graduate, change jobs, and face layoffs and economic uncertainty. Meanwhile, the H-1B system allows qualifying foreign workers to maintain employment through successive extensions and, in certain circumstances, remain beyond the ordinary six-year limit.
A previous approval should not entitle an employer to an easier path to another one. Employment arrangements change, workers move between projects and end clients, job duties evolve, and companies reorganize. USCIS must be able to examine the current facts and require employers to demonstrate that each petition continues to satisfy the law. An earlier approval is not a permanent certification of eligibility.
The issue extends beyond H-1B renewals. Students can move from F-1 status into employment through OPT and its STEM extension before seeking H-1B status, and certain H-4 and L-2 spouses can also obtain work authorization. These pathways can interact to sustain a foreign workforce over extended periods. DHS should evaluate how these programs operate in practice, not merely how they are defined individually.
Fraud and noncompliance make rigorous review even more crucial. USCIS's own site-visit data, discussed in the proposed rule, demonstrate the need for meaningful oversight. Where there are concerns about whether a worker is performing the qualifying job, whether the arrangement is genuine, or whether the employer is meeting its obligations, the government must retain the authority to investigate and act. Weak oversight can create moral hazard and opportunities for employers and intermediaries to exploit the system, undermining the integrity of the program and disadvantaging American workers. Every petition should be supported by current evidence, and every employer should be held accountable for meeting the requirements of the classification it seeks.
The consequences are particularly serious for young Americans entering the workforce. Students invest years of education and substantial sums of money preparing for professional careers, and they should have a fair opportunity to compete for positions in their own country. Employers should not be permitted to treat access to foreign labor as a substitute for recruiting, training, and retaining American workers.
Young workers and recent graduates often lack the financial resources and organized lobbying power available to the employers and industry groups advocating for continued access to foreign labor. Their relative absence from the policymaking process should not be mistaken for an absence of legitimate interests. The interests of those with the greatest financial stake in the H-1B program must not supersede the interests of the American public.
We therefore urge DHS to:
Finalize the proposed rule removing mandatory deference to prior determinations for Form I-129 petitions, so that extensions are adjudicated on their current evidence and merits.
Strengthen targeted compliance inspections, particularly for extension cases involving third-party worksites and staffing arrangements.
Publish regular enforcement data, including site-visit findings and substantiated violations, and ensure that substantiated violations result in meaningful consequences.
Evaluate the interaction between F-1 OPT, H-1B employment, and dependent-spouse work authorization, and whether these arrangements serve their stated purposes.
The burden of establishing eligibility belongs to the petitioner. A prior approval should not shield an employer from scrutiny. American workers deserve an immigration system that enforces its own rules, holds employers accountable, and treats the interests of the American workforce as a central consideration rather than an afterthought.
Bureau of Labor Statistics, Employee Tenure in January 2026 (released September 24, 2026): median tenure of 3.0 years for wage and salary workers ages 25 to 34.
Our Comment: Removing Deference to Prior USCIS Determinations of Eligibility
We support this proposed rule and urge DHS to finalize it without delay.
The H-1B program was established to allow employers to hire foreign workers temporarily for qualifying specialty occupations. It was not intended to become a revolving door through which employers could continually extend foreign employment while American workers struggle to find jobs in their own country.
Yet renewals and extensions now account for the majority of H-1B petitions approved by USCIS. In fiscal year 2025, approximately 72% of approved H-1B petitions were for continuing employment. This is not a marginal feature of the program. It is central to how the program operates. When most approvals concern existing workers, the integrity of the renewal process becomes fundamental to the integrity of the entire system.
The contrast with American workers deserves attention. In January 2026, median tenure with an employer was three years for workers ages 25–34, according to the Bureau of Labor Statistics. Young Americans graduate, change jobs, and face layoffs and economic uncertainty. Meanwhile, the H-1B system allows qualifying foreign workers to maintain employment through successive extensions and, in certain circumstances, remain beyond the ordinary six-year limit.
A previous approval should not entitle an employer to an easier path to another one. Employment arrangements change, workers move between projects and end clients, job duties evolve, and companies reorganize. USCIS must be able to examine the current facts and require employers to demonstrate that each petition continues to satisfy the law. An earlier approval is not a permanent certification of eligibility.
The issue extends beyond H-1B renewals. Students can move from F-1 status into employment through OPT and its STEM extension before seeking H-1B status, and certain H-4 and L-2 spouses can also obtain work authorization. These pathways can interact to sustain a foreign workforce over extended periods. DHS should evaluate how these programs operate in practice, not merely how they are defined individually.
Fraud and noncompliance make rigorous review even more crucial. USCIS's own site-visit data, discussed in the proposed rule, demonstrate the need for meaningful oversight. Where there are concerns about whether a worker is performing the qualifying job, whether the arrangement is genuine, or whether the employer is meeting its obligations, the government must retain the authority to investigate and act. Weak oversight can create moral hazard and opportunities for employers and intermediaries to exploit the system, undermining the integrity of the program and disadvantaging American workers. Every petition should be supported by current evidence, and every employer should be held accountable for meeting the requirements of the classification it seeks.
The consequences are particularly serious for young Americans entering the workforce. Students invest years of education and substantial sums of money preparing for professional careers, and they should have a fair opportunity to compete for positions in their own country. Employers should not be permitted to treat access to foreign labor as a substitute for recruiting, training, and retaining American workers.
Young workers and recent graduates often lack the financial resources and organized lobbying power available to the employers and industry groups advocating for continued access to foreign labor. Their relative absence from the policymaking process should not be mistaken for an absence of legitimate interests. The interests of those with the greatest financial stake in the H-1B program must not supersede the interests of the American public.
We therefore urge DHS to:
The burden of establishing eligibility belongs to the petitioner. A prior approval should not shield an employer from scrutiny. American workers deserve an immigration system that enforces its own rules, holds employers accountable, and treats the interests of the American workforce as a central consideration rather than an afterthought.
We urge DHS to finalize this rule.
nomoreh1bs.com
Sources