US Proposes Ending Deference for H-1B and L-1 Visa Extensions

The US Department of Homeland Security (DHS) published a proposed rule in the Federal Register on 14 October 2026 to end deference to prior approvals for Form I-129 extension petitions. If DHS finalizes the rule, USCIS officers will review every H-1B, L-1, O-1, TN, E and other worker extension as a fresh case, even when the employer, the worker and the job have not changed.

The notice is titled "Removing Deference to Prior USCIS Determinations of Eligibility" (FR Doc. 2026-20941, DHS Docket No. USCIS-2026-0529, RIN 1615-AD26). Public comments are open for 30 days, which puts the deadline at 13 November 2026. The rule is a proposal. Current deference rules stay in force until a final rule takes effect.

What deference means today

Under 8 CFR 214.1(c)(5), USCIS gives deference to a prior approval when a new Form I-129 involves the same parties and the same underlying facts. Officers must follow the earlier decision unless they find a material error, a material change, or new material information harmful to eligibility.

In practice, deference matters most when your employer files to extend your stay in the same classification. Say USCIS approved your H-1B for a software engineer role in 2023, and nothing about the job or the company has changed. The officer reviewing your 2026 extension starts from the earlier approval. If the officer decides not to defer, the USCIS Policy Manual requires the officer to name the prior approval in the Request for Evidence (RFE), Notice of Intent to Deny (NOID) or denial, explain the reason, and give your employer a chance to respond.

DHS wants to remove paragraph (c)(5) and mark the section as reserved. The proposed text contains no replacement standard. Officers would still be free to look at a prior approval, but they would no longer start from deference. Your employer would carry the full burden of proving eligibility on every filing.

Who the change covers

The deference rule applies to Form I-129, Petition for a Nonimmigrant Worker. According to the proposed rule, employers file Form I-129 to extend stay for these classifications:

• Specialty and treaty workers: H-1B, H-1B1, E-1, E-2, E-3 and TN
• Intracompany transferees: L-1
• Extraordinary ability workers and support staff: O-1 and O-2
• Athletes, entertainers and artists: P-1, P-2, P-3 and the related P-S categories
• Seasonal workers and trainees: H-2A, H-2B and H-3
• Cultural exchange and religious workers: Q-1 and R-1

Spouses and children usually extend on Form I-539, so their cases depend on the outcome of the principal worker's petition.

USCIS data in the proposal shows the scale. From FY 2022 to FY 2025, USCIS received an average of 688,830 Form I-129 petitions per year. About 208,429 of those petitions each year, or 30 percent, were eligible for deference. In FY 2025 alone, 235,583 petitions fell in the eligible group.

Why DHS wants to end deference

DHS gives three main reasons in the notice.

• Burden of proof: The Immigration and Nationality Act places the burden on the petitioner. DHS says deference shifts the burden to the officer, who must justify any departure from a prior approval.
• Fact-finding: DHS says deference pushes officers to value consistency and speed over a full review of current evidence.
• Program integrity: DHS cites USCIS site visit data on fraud and non-compliance in extension cases.

The site visit figures form the core of the integrity argument. For H-1B extension cases, the combined fraud and non-compliance rate found during administrative and targeted site visits was 22.39 percent from FY 2022 through FY 2025, when deference applied. From FY 2018 through FY 2020, with no deference in place, the rate was 16.77 percent. For L-1A extension cases, the rates were 24.46 percent and 18.37 percent for the same periods. DHS excluded FY 2021 because deference returned partway through the year.

DHS also weighed a softer option. The agency considered rewording the rule to make deference optional at each officer's discretion. DHS rejected this path, saying a discretionary standard would confuse employers and officers about when deference applies.

A policy with a long back-and-forth history

• April 2004: USCIS issued a memo directing officers to defer to prior approvals in extension cases.
• October 2017: USCIS rescinded the 2004 memo through policy memo PM-602-0151, dated 23 October 2017.
• April 2021: USCIS restored deference and added the policy to the USCIS Policy Manual.
• December 2024: DHS wrote deference into regulation through the H-1B modernization final rule, published on 18 December 2024.
• October 2026: DHS proposes to remove the regulation.

Because the 2024 rule placed deference in the Code of Federal Regulations, DHS needs full notice-and-comment rulemaking to remove the provision. A policy memo alone will not do the job this time.

What DHS expects to happen

DHS predicts more RFEs. The agency compared RFE rates before and after the 2017 rescission. For petitions affected by deference, the RFE rate rose from 18.9 percent (1 October 2013 to 11 October 2017) to 23.4 percent (12 October 2017 to 27 April 2021). For other petitions, the rate rose from 31.4 percent to 33.0 percent over the same periods. After adjusting for the wider trend, DHS links a rise of 2.9 percentage points to the end of deference.

Applied to the 208,429 eligible petitions per year, DHS estimates about 6,044 extra RFEs annually. The notice puts the direct cost to employers at about $133,987 per year, or $22.17 per extra RFE. DHS bases the estimate on a time burden of 10 minutes per response. The agency also says added staff and attorney time for stronger initial filings is a real cost but one DHS does not quantify.

Time is the bigger cost for you. From FY 2022 to FY 2025, median processing times averaged 76 days for petitions with an RFE and 12 days for petitions without one. An RFE adds about 64 days to a decision, according to the USCIS data cited in the rule.

What this means if you hold a work visa

If your employer files your extension on time, you generally keep your authorized stay while the case is pending. DHS points to 8 CFR 274a.12(b)(20), which lets many workers continue employment with the same employer for up to 240 days after status expires while a timely extension is pending.

The real risk falls on travel, planning and family. A longer wait means a longer period without a new approval notice, and you need a current approval to get a fresh visa stamp abroad. Dependants on Form I-539 also wait on the principal case. A denial after a long wait leaves less time to find a new sponsor or change status.

Steps for workers

• Ask your employer to start the extension early. USCIS accepts an H-1B extension up to six months before the requested start date.
• Keep a full file of pay slips, W-2 forms, tax returns and a current job description. Your extension needs to show you meet the rules today, not only on the day of the last approval.
• Check the job details. If your duties, worksite or salary changed since the last approval, the change needs to appear in the new petition.
• Plan travel with care. Avoid trips abroad while an extension is pending if your visa stamp has expired.
• Ask about premium processing. For many I-129 categories, premium processing gives you a first decision or RFE within 15 business days. If USCIS issues an RFE, a new 15-day clock starts once USCIS receives your response.

Steps for employers

• Treat every extension as a new petition. Submit full evidence of the job, the employment relationship and the worker's qualifications.
• For L-1 cases, document the managerial, executive or specialized knowledge role again, with current organization charts.
• For H-1B cases, include the certified Labor Condition Application, payroll records and proof of the specialty occupation.
• Budget for longer timelines and build project plans around a possible RFE.
• Track the docket. If DHS publishes a final rule, check the effective date and which pending filings the rule covers.

How to comment

DHS accepts comments only through the Federal eRulemaking Portal at regulations.gov under DHS Docket No. USCIS-2026-0529. USCIS will not accept mailed, emailed, hand-delivered or couriered comments. Comments must be in English or include an English translation. All submissions are posted publicly, including any personal details you add.

DHS says the most useful comments reference a specific part of the proposal, explain the reason for a change, and include supporting data. If you are an employer or a worker, your own RFE history, processing delays and business costs are the kind of evidence DHS asks for.

After the comment period closes on 13 November 2026, DHS must review the comments before publishing any final rule. The proposal does not set an effective date. Until a final rule appears, USCIS officers continue to apply 8 CFR 214.1(c)(5) to extension petitions. Watch the docket and the USCIS newsroom, and talk to an immigration attorney before your next extension filing.