The first visa petition for a U.S. subsidiary usually gets three months of attention. The renewal gets an afternoon. A proposed USCIS rule published this week would make those two filings the same size.
On October 14, USCIS published a proposed rule in the Federal Register (91 FR 65119) that would remove the long-standing practice of deferring to a prior approval when adjudicating extensions of H-1B, L-1, O-1, E and TN petitions. Under the proposal, each extension would be reviewed as if it were a new filing. DHS estimates that roughly 208,000 petitions a year currently benefit from deference.
In practice, deference meant that when the employer, the employee and the role had not materially changed, an officer would generally not revisit the original approval. Without it, the burden of proof returns to the company at every renewal, and requests for evidence become more likely. For a European parent that relies on one or two key managers to run its U.S. entity, a delayed extension is an operational risk, not an administrative one.
Three measures are inexpensive and entirely within the company's control. First, keep the U.S. entity's role descriptions, organizational chart and reporting lines current, so they describe the business as it operates today. Second, maintain financial statements that show the subsidiary doing what the original petition said it would do. Third, start extensions early and treat them with the same rigor as the initial filing.
Timing matters. This is a proposal, not a final rule. Comments are open through November 13, which gives companies and trade associations a formal opportunity to be heard, and the current rules remain in effect until a final rule is issued. The prudent course is to build the documentation discipline now, so the company is prepared regardless of the outcome.
