A previously approved H-1B petition may no longer receive the same favorable consideration when an employer requests an extension if a new proposal from U.S. Citizenship and Immigration Services (USCIS) becomes final.
On October 14, 2026, the Department of Homeland Security (DHS) published a proposed rule that would end the requirement for USCIS to defer to certain prior eligibility decisions when reviewing Form I-129 petitions. The proposal could affect employers seeking extensions for H-1B workers, L-1 transferees, O-1 professionals, and other nonimmigrant workers.
The proposal is not yet final. However, employers with upcoming renewals should understand what DHS wants to change, how the current policy works, and what they can do now to prepare.
What is USCIS’s proposed end to deference for prior immigration approvals?
Deference means giving weight to an earlier decision when USCIS reviews a subsequent petition involving the same employer, worker, and underlying facts.
Under the current regulation, USCIS generally gives deference to a previous eligibility determination unless there was a material error, a significant change in circumstances or eligibility requirements, or new material information that adversely affects eligibility. This approach was codified in the December 2024 H-1B modernization rule.
DHS now proposes removing 8 CFR 214.1(c)(5), the regulation establishing this requirement. The agency argues that each petition should be assessed on its evidence and that an earlier approval should not limit an officer’s authority to reassess eligibility.
The proposal states that “the burden of proving eligibility for the benefit sought remains entirely with the applicant.” This reflects DHS’s position that employers must establish eligibility for each requested extension, even when USCIS previously approved the same worker’s petition.
Which visa holders and employers would be affected?
The proposal would apply broadly to benefit requests filed using Form I-129, Petition for a Nonimmigrant Worker, rather than H-1B petitions alone.
Potentially affected classifications include:
- H-1B: Workers in specialty occupations.
- L-1A and L-1B: Intracompany transferees in managerial, executive, or specialized-knowledge roles.
- O-1: Individuals with extraordinary ability or achievement.
- Other classifications: Including H-1B1, H-2A, H-2B, E-1, E-2, E-3, P, Q, R-1, and TN categories, where the relevant petition is filed on Form I-129.
Employers that regularly extend workers’ status could face additional preparation and documentation demands. Businesses in New York, New Jersey, and elsewhere in the U.S. may need to review how they maintain records for employees whose immigration status depends on recurring petition approvals.
The proposal does not mean every extension will be denied or questioned. It means a prior approval would no longer carry the same required deference if the proposed rule takes effect.
How would the proposal change the H-1B extension process?
Currently, when the same employer requests an extension for the same worker under unchanged circumstances, USCIS generally gives weight to its earlier eligibility decision, subject to the exceptions in the regulation.
Under the proposal, officers could reassess the petition without starting from a position of deference. They could examine whether the job still qualifies as a specialty occupation, whether the worker’s education and experience meet the requirements, and whether the actual duties match the position described in the filing.
Employers may also need to document the continuing employment arrangement, including work locations, wage information, project assignments, and the employer’s ability to provide the offered position.
An earlier approval would remain part of the record and could still be considered where relevant. However, DHS explicitly says its proposal would remove the requirement to begin from a position of deference.
This distinction matters: a prior approval would not automatically establish eligibility for a future extension. Employers should ensure that each new petition accurately reflects the worker’s current circumstances and includes evidence supporting the requested classification and period of stay.
Could ending deference lead to more RFEs, denials, and processing delays?
Potentially. DHS anticipates that more detailed reviews could lead to additional Requests for Evidence (RFEs), longer adjudication times, and greater uncertainty for employers and workers. The agency’s own analysis identifies these as possible costs of the proposal.
An RFE asks the petitioner to provide additional evidence before USCIS decides the case. A Notice of Intent to Deny (NOID) indicates that USCIS intends to deny the petition unless the response adequately addresses the identified concerns.
Neither notice automatically means the petition will be denied. However, responding can require additional records, legal analysis, and time from human resources teams, managers, workers, and immigration counsel.
For an employer, the practical concern is not simply a higher legal bill. A delayed or denied extension could disrupt staffing, project schedules, and workforce planning. Workers may also face uncertainty about their continued employment and immigration status.
Employers can reduce avoidable problems by reviewing prior filings for inconsistencies, updating supporting documents, and allowing sufficient time to prepare a renewal. Strong evidence cannot guarantee approval, but it can help USCIS evaluate the petition on a clear and complete record.
What does the proposal mean for H-1B workers approaching their six-year limit?
Workers approaching the usual six-year H-1B limit should pay particular attention to extension timing. Certain workers may qualify for extensions beyond six years under the American Competitiveness in the Twenty-First Century Act, commonly known as AC21.
Depending on the circumstances, eligibility may arise when at least 365 days have passed since a qualifying labor-certification application or employment-based immigrant petition was filed. Certain workers with approved Form I-140 immigrant petitions who cannot obtain permanent residence because of per-country visa limits may also qualify for extensions of up to three years at a time.
These exceptions have specific requirements. An approved I-140 or pending green card case does not automatically guarantee eligibility for every extension.
The proposed deference change would not itself eliminate these statutory extension provisions. However, employers would still need to establish eligibility under the applicable rules, and a more intensive review could add uncertainty to renewal planning.
If your current H-1B approval is nearing expiration, review your I-94 expiration date, remaining H-1B time, labor-certification or I-140 milestones, and the timing of the next petition with qualified immigration counsel. Do not assume a pending extension or green card filing resolves every status or employment concern.
What should employers do to prepare for the proposed changes?
Employers do not need to wait for a final rule to improve their extension preparation. Consider these steps:
- Audit upcoming renewals. Identify H-1B and other I-129 petitions that will need extensions, especially cases involving approaching expiration dates or six-year limits.
- Update employment records. Keep accurate job descriptions, work locations, wage details, organizational charts, qualifications, and project information.
- Compare prior filings. Check whether the new petition matches the current role and explain any legitimate changes in duties, worksite, compensation, or reporting structure.
- Build an earlier preparation schedule. Give the business, employee, and legal team time to gather documents and address potential issues.
- Review higher-risk cases with counsel. Previous approvals, complicated work arrangements, changing job duties, and green card timing may deserve particular attention.
These steps are useful under the current rules, too. They can help employers identify gaps before filing instead of trying to correct them after USCIS raises questions.
When could the new rule take effect, and what happens next?
As of October 19, 2026, the proposal has not become final. DHS is accepting public comments through November 13, 2026, under Docket No. USCIS-2026-0529.
After reviewing comments, DHS may publish a final rule, revise the proposal, delay action, or withdraw it. A final rule would explain its effective date and any changes made in response to public feedback.
Until a final rule takes effect, employers should distinguish the proposed change from the existing regulation. The current deference requirement remains important when USCIS adjudicates qualifying extensions.
Employers and workers should monitor official USCIS and Federal Register announcements, particularly if a renewal is approaching. Planning ahead is sensible, but treating a proposal as an already implemented rule could lead to unnecessary confusion.
How The Law Offices of Anne Z. Sedki can help
Immigration extensions require careful attention to both the applicable rules and the facts of each case. The Law Offices of Anne Z. Sedki assists individuals and employers with employment-based immigration matters, including H-1B petitions and other nonimmigrant worker issues.
With offices in New York and New Jersey and services for clients nationwide and worldwide, the firm can help you review an upcoming extension, identify documentation gaps, assess relevant immigration timelines, and prepare for questions that may arise during adjudication.
If you employ foreign professionals or your own H-1B or other work status is approaching expiration, consider arranging a consultation before your next filing deadline. SCHEDULE A CONSULTATION
Frequently asked questions (FAQs)
What is USCIS’s deference policy for prior approvals?
It is the current requirement that USCIS generally give weight to an earlier eligibility determination when a qualifying extension involves the same parties and underlying facts, unless a specified exception applies.
Is USCIS ending deference for H-1B extensions?
DHS has proposed ending the requirement, but the proposal is not yet final as of October 19, 2026.
Has the new H-1B extension rule taken effect?
No. The proposal was published on October 14, 2026. The public-comment period ends November 13, 2026.
Will USCIS review my H-1B extension as a new case?
If the proposal becomes final, USCIS would no longer be required to defer to the prior approval. Officers could reassess eligibility based on the evidence in the current filing.
Can USCIS deny an H-1B extension that was previously approved?
Yes. A previous approval does not guarantee a later extension. USCIS must determine whether the current petition establishes eligibility under the applicable requirements.
Will the proposal lead to more RFEs for H-1B extensions?
DHS expects the change could increase RFEs, but the number of requests and their effect on individual cases remain uncertain.
Does the proposal affect L-1 and O-1 visa extensions?
Yes. The proposal would apply broadly to covered Form I-129 requests, including L-1 and O-1 petitions.
How could the proposed rule affect H-1B workers waiting for green cards?
It could add uncertainty to extension adjudications, including for workers seeking extensions beyond six years. Existing AC21 eligibility provisions would remain separate requirements that must be established.
What should employers do before filing an H-1B extension?
Review the worker’s current duties, qualifications, wages, work location, prior filings, and expiration dates. Gather updated supporting evidence and seek legal guidance where the case presents complications.
When will USCIS finalize the proposed deference rule?
No finalization date has been announced in the proposal. Comments are due November 13, 2026, and DHS must consider the rulemaking process before deciding what happens next.
