What You Missed In Immigration: DHS Wants to Stop Deferring to Prior Approvals, EB-1A Gets a Court Test & Premium Processing May Be Changing
DHS Proposes Ending Deference to Previous Visa Approvals
DHS has proposed eliminating the longstanding policy that directs USCIS officers to generally defer to prior approvals when reviewing employment-based nonimmigrant extension petitions involving the same employer, employee, and underlying facts. If finalized, the change would affect H-1B, L-1, O-1, and other extension petitions. Officers would evaluate each filing from scratch rather than giving weight to the fact that the same case was already approved. That means more requests for evidence, longer processing times, and higher preparation costs for employers filing routine extensions. The proposal has not taken effect yet. Public comments are open through November 13
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The PERM Takeaway: Deference to prior approvals has been the backbone of efficient H-1B extension processing for years. When USCIS approved a petition the first time and nothing material changed, the extension was largely a formality. Removing that deference turns every renewal cycle into a full adjudication. For PERM employers, this compounds the workload at both ends of the sponsorship process. You are already building a case from the ground up for the PERM labor certification. Now, the nonimmigrant petition that keeps the employee authorized to work while the green card case moves forward would also require a full evidentiary build each time it comes up for renewal. Counsel should be preparing extension filings as though deference is already gone, because the direction of travel is clear. Assemble the same level of documentation you would for an initial petition: detailed support letters, updated organizational charts, current financial evidence, and a thorough explanation of the position and the employee's qualifications. If the final rule matches the proposal, employers who already adopted that standard will not miss a beat. The comment period closes November 13, and employers who rely on extensions to bridge employees through lengthy PERM processing times have a direct interest in making their position known.
Federal Judge Upholds USCIS's EB-1A Two-Step Review Process
A federal judge in Nebraska upheld USCIS's use of the two-step review framework for EB-1A extraordinary ability green card petitions. In Agarwal v. Miller, the court rejected a challenge to the agency's final merits determination, the second step that evaluates whether an applicant has demonstrated sustained national or international acclaim beyond simply meeting the initial evidentiary criteria. The September ruling follows a conflicting decision from a different Nebraska federal judge, which means the legal question is not settled. For now, applicants should continue building their cases to satisfy both steps: meeting the specific regulatory criteria and independently demonstrating that they stand at the top of their field.
The PERM Takeaway: EB-1A sits outside the traditional PERM process because extraordinary ability petitions do not require labor certification. But EB-1A outcomes affect PERM employers because they shape the competitive landscape for talent. When EB-1A approvals tighten, more applicants who might have self-petitioned end up pursuing employer-sponsored EB-2 or EB-3 green cards through PERM instead. That increases demand on the PERM pipeline and puts more pressure on already-retrogressed visa categories. The conflicting judicial opinions also create geographic uncertainty. Depending on which court's reasoning prevails, EB-1A adjudication standards could vary by jurisdiction until a higher court resolves the split. Employers with employees considering EB-1A should make sure counsel is building the case to survive the stricter two-step standard, because that is the version USCIS is applying and the version the most recent court endorsed.
Proposed Premium Processing Changes Enter Federal Review
A proposed rule titled "Amending the Premium Processing Timeframe" was submitted to the White House Office of Information and Regulatory Affairs on October 13 for review. The proposal has not been published, and the specific changes remain unknown. Premium processing currently allows eligible petitions to receive expedited USCIS adjudication within designated timeframes. Current deadlines remain in effect while the proposal is under review, but the submission signals that changes to those timelines are under active consideration.
The PERM Takeaway: Premium processing is how employers buy predictability in a system that otherwise operates on USCIS's schedule. Any change to the guaranteed timeframes affects workforce planning directly. If the processing window gets longer, employers lose the ability to time H-1B start dates, respond to project deadlines, or onboard sponsored workers within a predictable window. If the window gets shorter, the cost may increase. Until the proposal is published, the specifics are speculation, but the fact that it entered White House review means a change is coming. Employers should monitor the Federal Register for publication and be ready to comment. If your company depends on premium processing to manage H-1B timelines, particularly during cap season or for employees bridging between PERM approval and adjustment of status, any shift in processing guarantees is directly relevant to your operations.
DHS Allows Ukraine and Sudan TPS Protections to Continue
DHS confirmed that Temporary Protected Status protections for eligible nationals of Ukraine and Sudan will remain in effect while the agency evaluates the future of both designations. The protections were set to expire October 19, but USCIS clarified that affected individuals may continue living and working in the United States pending further announcements. DHS has not said how long the protections will last, leaving TPS holders and their employers in a familiar holding pattern.
The PERM Takeaway: TPS extensions without a defined end date create a recurring planning challenge for employers. Workers with TPS-based employment authorization are legally authorized to work, but the authorization rests on a designation that can be terminated or allowed to expire at any time. For employers who have TPS holders on staff, the continuation is good news in the short term, but it does not eliminate the underlying instability. If you have a valued employee whose work authorization depends on TPS, this is the moment to evaluate whether employer-sponsored permanent residence through PERM makes sense. A green card removes the employee from the cycle of TPS renewals and gives both the employer and the worker a stable long-term authorization. Counsel should also be checking I-9 documentation for TPS employees to ensure that current employment authorization documents reflect the extension and that re-verification is handled correctly once USCIS publishes updated guidance.
Stay sharp, stay compliant, and we'll see you next week.
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