Renewing L-1 and E-2: USCIS wants to start from scratch

The proposal is titled "Removing Deference to Prior USCIS Determinations of Eligibility". It targets a single provision: section 214.1(c)(5) in Title 8 of the Code of Federal Regulations.

Today this provision requires USCIS, when deciding an extension, to generally respect an earlier approval if the parties and the facts are the same. The agency may only depart from it if the earlier approval rested on a material error, if circumstances have materially changed, or if new material information has come to light. The technical term is deference: trusting your own earlier decision.

The proposal would delete this provision without replacement. Every extension request would be reviewed in full, as if the first approval had never happened.

The provision applies to petitions on Form I-129, the petition for foreign workers. The proposal states explicitly that this includes categories where the applicant files the petition rather than an employer, such as the E visa and TN.

For Europeans, three groups stand out. Executives and specialists on an L-1 visa, whose US employer files the extension. Investors and their employees in E-2 status who extend their stay with USCIS inside the US rather than through a consulate abroad. And professionals on H-1B or O-1.

If you renew your E-2 visa regularly at a US consulate in Europe, this provision does not affect you directly, because it binds USCIS, not the State Department. But many investors choose USCIS precisely so they don't have to leave the country for every extension.

The principle of respecting earlier approvals has long been part of USCIS practice, and it has been narrowed and broadened several times in recent years. It has only been written into regulation in its current form since a rule of 18 December 2024, the big H-1B modernization. Back then, the agency itself wrote that applicants still bore the burden of proof, and that deference to earlier decisions did not mean a petition went unreviewed.

Now the department says practice looked different. The rule, it argues, effectively shifted the burden onto officers, who had to justify departing from an earlier approval. It put consistency and efficiency ahead of thorough review. And it raised the risk of flawed approvals being extended again and again.

For Frank, the change means proving his L-1A eligibility as if he were starting out. That he is an executive. That the US company is affiliated with the German parent. That his work is primarily managerial, not operational. That the subsidiary is genuinely doing business.

With a young subsidiary that is demanding, especially once it has grown. Three years ago Frank was the only employee, and the agency assessed the growth plans. Today he has to show that those plans have been carried out, that an organization works under him and frees him from day-to-day tasks, and that he makes decisions instead of selling machines.

The agency could already demand this if circumstances had materially changed. What is new is that it could demand it in every case, without having to explain why it is departing from the earlier decision.

What does a full review cost? Not necessarily higher government fees; those stay the same. But a lot more preparation.

Frank needs a current org chart of the subsidiary covering all eighteen positions, with job descriptions, salaries and qualifications. Payroll records and payroll tax filings. The company's tax returns for recent years. Proof of revenue, customer contracts, the warehouse lease. A description of his own work showing how much of it is management. And documents on the relationship with the parent company.

A well-run company has all of this somewhere. For the file, it has to be gathered, organized and explained. Count on three to four weeks of work in HR and accounting, spread over two months, plus the attorney's fee for a more extensive petition. And count on the risk of a request for evidence that can drag the process out by months.

Start just six weeks before your stay expires, and you won't have enough time.

Many European investors live in America on an E-2 that they extend with USCIS rather than at a consulate. The advantage: they don't have to leave, and an extension of stay is usually granted for up to two years.

Until now, they could rely on the agency not fundamentally reassessing their investment, their business and their role as its head if nothing material had changed. Going forward, they would have to prove everything again with every extension: the amount and source of the investment, actual business activity, the number of employees, and the company's prospects of doing more than just supporting the family.

If you run a small business whose revenue dipped in a weak year, that is a new risk. Under the current rule it was a detail. Under the new one it can become the central question. Clean books and complete corporate tax returns are no longer just an obligation to the IRS; they become part of your visa file.

This belongs in the middle of this article, not at the end. The provision still applies today. Until 13 November 2026, anyone can comment on the proposal via regulations.gov. After that, the department must review the comments and, if it sticks to its plan, publish a final rule. There is no date for that.

For planning purposes, the same applies as with the grace period whose planned end we covered in September in Lose your job, leave the same day: if you have an extension coming up next year, prepare as if deference to earlier decisions no longer exists.

If you've followed the past few weeks, you can see how the pieces fit together. The grace period after a job ends is set to disappear. The H-1B restriction was extended by a year, as we reported in One more year, and a new directive requires employer layoffs to be considered in every petition. And now every extension is to start from scratch.

The common thread is clear: the agency wants to be able to re-examine everything, at any time, in every case. For companies and people whose affairs are in order, that mostly means effort. For anyone whose file has gaps, it is a risk.

But there is another reading, and for European business owners it is the more useful one. If you run your US subsidiary from day one so that every review confirms it, with clean books, real jobs, clear structures and complete tax returns, a fresh review is no threat. It is a formality with more paperwork.

Keep a deadline list. For every transferred employee: when the authorized stay ends, when the visa expires, the planned extension date. And start preparing at least six months ahead.

Maintain the file continuously, not after the fact. Update org charts, job descriptions and records of duties every year, not just when the petition is due. How to structure an assignment in general is covered in Sending employees to the USA.

Check the subsidiary's structure. A US company that exists only on paper has always been a risk. Under the new rule, it becomes a problem at every extension. If you are bringing your business to the United States in whole or in part, do it from the start so that structure and visas fit together.

And know a second route. For an executive who wants to stay in America for good, the green card for multinational executives may be an option alongside extending the L-1. It requires its own review, but it ends the cycle of extensions.

Frank read the proposal one evening in his office; the warehouse below was dark, only the emergency lights glowing over the shelves. Afterward he started a list that now has eleven items. The first: redraw the org chart. The last: talk to the family about next year.

He isn't worried. The subsidiary is real, the jobs are real, the customers pay their invoices. But he understands that three years of success won't automatically carry him through the next review. He has to prove it.

Which documents your extension or a new petition needs, the order in which the steps run and which path suits you in the long term: we work all of this out in writing in your Visa Roadmap, together with the immigration attorney on the firm's team. The final decision always rests with the agency. But a file that is complete before anyone asks for it is the best thing you can put in front of them. You'll find an overview of every visa category in our US Visa and Green Card guide, and all of our services under Services.

Outside Frank's warehouse, the sun is setting over the fields north of Austin, just as it has every evening since he started here. The agency wants to see everything again. Fine, Frank thinks. There's plenty to see.

Consultation & implementation

If you'd like to find out what this means for your own situation, the best step is to book a consultation.