H-1B Extensions: What DHS Wants to Change

What is "deference" in H-1B extensions?

When an employer wants to keep a foreign worker beyond the end of their approved period, it files a request to extend the worker's stay, and usually the petition itself, on Form I-129, Petition for a Nonimmigrant Worker ^[1]. That form is used for extensions in many classifications, including E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, P, Q-1, R-1 and TN workers ^[1].

Deference is the rule that tells U.S. Citizenship and Immigration Services (USCIS) how to treat its own earlier decision in that situation. The current regulation, 8 CFR 214.1(c)(5), says that when USCIS adjudicates a Form I-129 request involving the same parties and the same underlying facts, it gives deference to its prior determination of eligibility ^[3]. USCIS need not defer if there was a material error in the earlier approval, a material change in circumstances or eligibility requirements, or new material information that adversely affects eligibility ^[3].

In practice, deference matters most for a routine extension: the same employer, the same worker and the same job. Under current guidance, an officer who decides not to defer must acknowledge the earlier approval, explain why, give the employer a chance to respond and obtain supervisory approval before departing from the prior decision ^[4].

Deference has never guaranteed approval. The employer still carries the burden of proving eligibility and must submit evidence with every filing, as USCIS's own policy manual says ^[4].

What exactly does the DHS proposal change?

The Department of Homeland Security (DHS), through USCIS, published a notice of proposed rulemaking titled Removing Deference to Prior USCIS Determinations of Eligibility in the Federal Register on 14 October 2026 (91 FR 65119, RIN 1615-AD26) ^[1]. The regulatory change itself is short: paragraph (c)(5) of 8 CFR 214.1 would be removed and marked "[Reserved]" ^[1].

The change would apply to all benefit requests filed on Form I-129 ^[1]. DHS says the proposal would not prohibit officers from considering a prior approval where relevant; it would remove the requirement that officers begin from a position of deference ^[1]. If the rule becomes final, USCIS says it would make corresponding changes to its policy guidance on deference ^[1].

DHS gives three main reasons ^[1]:

• Burden of proof. The Immigration and Nationality Act places the burden of proving eligibility on the petitioner. DHS argues that deference in practice shifts that burden to the officer, who must find an error or change before departing from a prior approval.
• Officer fact-finding. DHS says deference discourages some officers from issuing requests for evidence even when eligibility has not been shown.
• Program integrity. DHS says a questionable first approval can become an anchor for later filings, and that petitioners may be less forthcoming about changes if they expect deference.

DHS also considered keeping the rule but making deference optional, by changing "USCIS gives deference" to "may give deference in its discretion". It rejected that alternative as likely to create confusion for petitioners and officers ^[1].

What does DHS's own data show about deference?

The proposal includes figures from USCIS systems. They are DHS's numbers and interpretations, and DHS itself acknowledges that factors other than deference may explain some of the differences ^[1].

• Requests for evidence. Comparing periods with and without deference, DHS estimates that removing it may raise the rate of requests for evidence (RFEs) by 2.9 percentage points for affected petitions ^[1].
• Denials. DHS states that historical denial rates did not statistically differ between periods when deference applied and when it did not ^[1].
• Site visits. Among H-1B extension cases checked in USCIS site visits, the combined rate of non-compliance or fraud was 22.39% in fiscal years 2022 to 2025, when deference applied, against 16.77% in 2018 to 2020, when it did not. For L-1A the figures were 24.46% and 18.37% ^[1].
• Scale. DHS estimates that about 208,429 petitions a year would be affected, based on the average for fiscal years 2022 to 2025 ^[1].

A law firm that represents employers, Reddy Neumann Brown, reads the same data differently: it argues that because denial rates did not change, the only measurable effect DHS found was more RFEs and therefore longer waits ^[6]. Both readings rely on the figures in the proposal.

The table below summarises the main figures.

How would an H-1B extension work if deference ends?

Consider a typical case. An employer received H-1B approval for a software engineer three years ago. The job, salary, worksite and employer are unchanged, and the employer files to extend for another period.

Under the current rule, the officer starts from the earlier finding that the job is a specialty occupation and that the worker qualifies. Unless there was a material error, a material change or new adverse information, the officer defers to that finding, and must explain and get supervisory sign-off if not deferring ^[3][4].

Under the proposal, the officer could still look at the earlier approval but would review the whole petition afresh, and could issue an RFE on questions decided before, such as whether the role is a specialty occupation ^[1][6]. The law firm notes that the safeguards in current guidance, such as supervisory approval before departing from a prior decision, would go along with the regulation ^[6].

Timing is the main practical difference. DHS reports that, averaged over fiscal years 2022 to 2025, the median processing time was 76 days for petitions that received an RFE and 12 days for those that did not ^[1]. DHS also notes that when an extension is filed on time and is still pending when the worker's status expires, the worker may remain in an authorized period of stay and may be eligible to keep working ^[1]. The law firm puts that continued work authorisation at up to 240 days after the I-94 expires and warns that longer processing pushes more cases toward that limit ^[6].

DHS estimates the added cost to employers of answering extra RFEs at about $133,987 a year in total, or about $22.17 per RFE, counting only staff and attorney time ^[1]. It describes longer adjudication times and uncertainty for workers and employers as unquantified costs ^[1].

Who would be affected by the change?

The proposal reaches every classification that uses Form I-129 for extensions, but H-1B dominates. DHS says H-1B petitions account for more than 75% of all Form I-129 filings ^[1]. In fiscal year 2025, of the employers filing H-1B extensions that DHS could classify by size, 57% were small entities ^[1].

Spouses and children usually extend their own stay on Form I-539, not Form I-129 ^[1], so the regulation does not apply to their forms directly.

DHS acknowledges that employers may have made business arrangements, and workers career and personal plans, assuming continued approvals. It argues those reliance interests are limited because deference never guaranteed approval and removing it does not change eligibility rules ^[1].

Workers thinking about their longer-term options may find the separate guide AI Skills for Jobs: What Young Workers Need and How to Start useful for planning. Anyone on a work visa who is considering side work should check whether their status allows it first; the guide How to Start Freelancing Online: Platforms, Fees, Taxes and Getting Paid covers platforms and taxes, not immigration permission.

How has deference changed since 2004?

This is not the first reversal. According to the proposal's own history ^[1]:

• April 2004: a USCIS memorandum first told officers to defer to prior approvals in extensions involving the same parties and facts.
• October 2017: USCIS rescinded that memorandum, saying it improperly shifted the burden to the agency.
• April 2021: USCIS reinstated deference and placed it in the USCIS Policy Manual ^[1][4].
• December 2024: DHS wrote deference into the regulations at 8 CFR 214.1(c)(5) in the H-1B modernization final rule, published on 18 December 2024 and effective on 17 January 2025 ^[1][5].
• October 2026: DHS proposed removing the regulation.

DHS acknowledges that some statements in the new proposal are a shift from what it said in the 2024 rule, when it rejected commenters who argued deference would constrain officers ^[1]. It now says it has reconsidered and believes the benefits it claimed then were overstated ^[1].

Because the policy has changed several times, employers that filed extensions between late 2017 and early 2021 have direct experience of a no-deference period; the law firm recalls that time as one of RFEs that re-litigated questions already approved ^[6].

Is the change in effect now, and when could it start?

No. As of 13 November 2026, 8 CFR 214.1(c)(5) is still in the Code of Federal Regulations ^[3]. A proposed rule does not change the law; DHS must review the public comments and publish a final rule, which would state its own effective date.

The comment period is set by the Federal Register notice: written comments must be submitted on or before 13 November 2026, and the federal docket system accepts them before midnight Eastern time at the end of that day ^[1]. On regulations.gov the docket is USCIS-2026-0529 and the proposal is document USCIS-2026-0529-0001 ^[2]. Regulations.gov lists the closing time as 04:59 UTC on 14 November 2026, which is the same moment ^[2]. After that moment the public comment window is closed.

DHS says comments sent by email, letter, courier or on digital media will not be considered; regulations.gov is the only accepted route, and comments are posted publicly, including any personal information they contain ^[1]. By 12 November 2026 the proposal had received 769 comments, according to the Federal Register's record of the regulations.gov docket ^[1].

There is no fixed date for a final rule. When one is published, it may differ from the proposal in response to comments. This guide covers only the deference proposal. The separate proposal to remove the 60-day grace period after a job ends, and the H-1B filing fee changes, are explained in the guide on the H-1B 60-day grace period and filing fees.

What should employers and H-1B workers watch next?

• The Federal Register. A final rule, if one comes, will appear there first, with the effective date and DHS's response to comments ^[1].
• The USCIS Policy Manual. USCIS says it would update its deference guidance if the rule becomes final ^[1][4].
• Processing times. If the change takes effect, the clearest early sign would be more RFEs on routine extensions, which DHS itself predicts ^[1].

Until a final rule is published, extensions continue to be decided under the current regulation, including deference where it applies ^[3].