DHS proposed on October 14, 2026 to end the rule that makes USCIS defer to its earlier approval when it reviews an H-1B extension or an L-1 visa extension. Nothing changes yet, because comments are open until November 13. If the rule becomes final, your last approval would no longer carry weight.
What DHS proposed on October 14
DHS, through USCIS, published a notice of proposed rulemaking titled "Removing Deference to Prior Determinations of Eligibility" on October 14, 2026, under docket USCIS-2026-0529. It would delete 8 CFR 214.1(c)(5), the regulation that tells USCIS to defer to its own earlier approval.
What deference does today
When your employer extends a petition with the same facts, USCIS defers to its prior approval. The exceptions are a material error, a material change, or new material information that hurts eligibility.
Under current USCIS policy guidance, an officer who declines to defer must acknowledge the earlier approval, explain the reason, and get supervisory approval first.
What the proposal removes
The proposal removes the regulation, and DHS says USCIS would update its policy guidance to match once the rule is final. Officers could still consider an earlier approval, but nothing would require them to defer to it.
It applies to all benefit requests filed on Form I-129, the petition for a nonimmigrant worker. That includes H-1B, L-1, O-1, TN, E and R-1 workers, among others.
What DHS says the change will do
DHS's stated reason is that deference shifts the burden of proof from the petitioner to the officer. Its own estimates:
- About 208,429 petitions a year were eligible for deference, out of an average 688,830 Form I-129 petitions in fiscal years 2022 to 2025.
- About 6,044 additional requests for evidence (RFEs) a year, from a 2.9 percentage point rise in the RFE rate.
- 64 more days for a petition that draws an RFE: 76 days against 12.
- About $133,987 a year in added costs to petitioners, or $22.17 per RFE.
DHS also cites site visits that found noncompliance or fraud in 22.39% of H-1B cases when deference applied, against 16.77% when it did not.
How the change reaches your H-1B extension
Your last approval stops carrying weight
If the proposal becomes final, your next extension gets reviewed as a fresh petition, even when nothing about the job has changed. The eligibility case behind your petition gets read again.
I'd plan for a request for evidence rather than hope to avoid one. DHS puts the RFE rate without deference at 23.4%, so most extensions won't draw one.
A case that does draw one takes 76 days by DHS's count, against 12 for one that doesn't.
What an H-1B RFE does to your 240-day cushion
If your employer files before your authorized stay ends, 8 CFR 274a.12(b)(20) lets you keep working for that employer for up to 240 days after it ends. That window is your cushion, and a slower case spends it. A denial inside the window ends your work authorization on the day you're notified.
Worked example: Priya's H-1B authorization ends on March 31, 2027, and her employer files on time. Her 240 days run out on November 26, 2027. The window is fixed, so every day USCIS spends on an RFE is a day closer to that date if the case is still undecided.
The real money risk is a paycheck that stops, so I'd hold cash to cover the full 240 days. Holding that reserve is part of planning around H-1B uncertainty.
Who is affected, and who isn't
- Affected, if the rule is finalized: anyone whose employer files a Form I-129 extension, including H-1B, L-1, O-1, TN, E and R-1 workers. DHS notes deference most often applies to same-employer extensions.
- No carve-out for green card waiters: the proposal makes no exception for workers with an approved I-140 or for extensions beyond the six-year limit. A green card freeze doesn't change that.
- Outside the proposal: a green card application on Form I-485, because the proposal covers Form I-129 only.
- Unclear: petitions pending on the day a final rule takes effect. The proposal says nothing about them.
What to do before your next extension
- Save every approval notice (Form I-797) and your I-94 in one folder.
- Ask your employer's immigration counsel when they plan to file and what they'd send if USCIS asks for evidence.
- Put your 240-day date in your calendar, counted from the day your authorized stay ends.
- Keep your W-2s, pay stubs and tax returns together. If USCIS asks for proof, they're the records you'll want at hand.
- Decide whether to comment by November 13, 2026, on regulations.gov under docket USCIS-2026-0529.
If your job ends, the next 60 days matter, so keep a 60-day checklist handy.
What happens next
Comments close on November 13, 2026, and DHS reviews them before it can issue a final rule. The proposal states no effective date, and the final text may differ from this one. Treat the numbers above as DHS's estimates, not outcomes.
This proposal arrives alongside earlier H-1B fee and selection changes, so keep your plans flexible.
Ask your employer's immigration counsel this week when your next extension will be filed and what the RFE plan is. I'd also count your 240-day date and line up cash to cover it. For a second view on what a work gap would do to your savings, InvestMates can help.
Frequently asked questions
Does the proposal to end deference apply to my H-1B extension right now?
No. The proposal isn't a final rule, so USCIS still defers to prior approvals under 8 CFR 214.1(c)(5) today. DHS hasn't stated an effective date, and the proposal is silent on petitions pending when a final rule takes effect.
Can USCIS deny my H-1B extension even though it approved my last one?
Yes, and it can do so under today's rules, because deference doesn't apply when USCIS finds a material error, a material change, or new material information that hurts eligibility. If a denial ever ends your stay, a plan for your RSUs and 401(k) should already exist.
Can I keep working if I switch employers while my extension is pending?
The 240-day rule in 8 CFR 274a.12(b)(20) is written for work with the employer that filed your extension. A move to a new employer mid-petition is a question for your immigration counsel before you act. The 240-day rule guide covers the window itself.
Does an H-1B RFE mean my extension will be denied?
No. A request for evidence is USCIS asking for more proof before it decides. DHS puts the RFE rate without deference at 23.4%, so about three in four extensions wouldn't draw one.
How do I comment on the DHS proposal to end deference?
Submit your comment on regulations.gov under docket USCIS-2026-0529 by November 13, 2026. DHS says comments sent by email or mail won't be considered, and submitted comments, including personal information, are made public.