USCIS proposes to end deference on extensions: what H-1B, L-1 and O-1 workers should know

When your employer files to extend your H-1B, L-1 or O-1, does USCIS start from the fact that it approved you before? Today, generally yes. A regulation tells USCIS to give deference to its earlier approval when the parties and the facts are the same. On October 14, 2026, the Department of Homeland Security (DHS) published a proposal to delete that regulation, so that officers would no longer begin from the prior approval. This is a proposed rule, not a final one. Deference still applies today, and DHS is taking public comments until November 13, 2026.

What does the current rule say?

Deference is written into the regulations at 8 CFR 214.1(c)(5):

"Deference to prior USCIS determinations of eligibility. When adjudicating a request filed on Form I-129 involving the same parties and the same underlying facts, USCIS gives deference to its prior determination of the petitioner's, applicant's, or beneficiary's eligibility. However, USCIS need not give deference to a prior approval if: there was a material error involved with a prior approval; there has been a material change in circumstances or eligibility requirements; or there is new, material information that adversely impacts the petitioner's, applicant's, or beneficiary's eligibility." 8 CFR 214.1(c)(5)

In plain terms, if your employer files to extend the same job for the same worker on the same facts, the officer starts from the earlier approval. The officer can depart from it only for one of three reasons: a material error in the earlier approval, a material change in circumstances or in the rules, or new material information that hurts eligibility (eCFR, 8 CFR 214.1).

The USCIS Policy Manual adds procedure. An officer who decides deference is not appropriate must acknowledge the previous approval in the request for evidence (RFE), notice of intent to deny (NOID) or denial, explain the reason for not deferring, and give the petitioner an opportunity to respond. The manual also says the burden of proof stays on the petitioner and that officers are not bound to approve a petition "strictly because of a prior approval" (USCIS Policy Manual, Volume 2, Part A, Chapter 4).

The policy has changed several times. According to DHS, USCIS first adopted deference in an April 2004 memorandum, rescinded it in October 2017 and reinstated it in the Policy Manual in April 2021, and DHS wrote it into the regulations in a December 2024 final rule (89 FR 103054) (91 FR 65119). That final rule, published December 18, 2024, took effect on January 17, 2025 (89 FR 103054).

What would the proposal change?

The proposed rule, titled "Removing Deference to Prior USCIS Determinations of Eligibility," was published by DHS and U.S. Citizenship and Immigration Services (USCIS) on October 14, 2026, at 91 FR 65119 (FR Doc. 2026-20941, DHS Docket No. USCIS-2026-0529, RIN 1615-AD26). Its regulatory text does one thing: it removes paragraph (c)(5) and marks it "[Reserved]" (91 FR 65119).

DHS describes the effect this way: the change "would not prohibit USCIS officers from considering a prior approval where relevant. Rather, it would remove the requirement that officers begin from a position of deference to the prior approval." DHS also says that if the rule becomes final, USCIS would make matching changes to the Policy Manual guidance on deference (91 FR 65119).

The notice states that the Office of Management and Budget did not designate the proposal a "significant regulatory action" under Executive Order 12866, so OMB did not review it (91 FR 65119).

Why does DHS say it is doing this?

DHS gives three main reasons in the notice (91 FR 65119):

1. Burden of proof. The Immigration and Nationality Act places the burden of proving eligibility on the petitioner (INA section 291). DHS says deference, in practice, shifts that burden to the officer, who must find an error or change before departing from the earlier approval.
2. Fact-finding. DHS says deference may lead some officers to approve without a full review. Using data from 2013 to 2021, it estimates that the RFE rate for affected petitions rose 2.9 percentage points more than for a comparison group after deference was rescinded in 2017. DHS found no corresponding change in denial rates, and it acknowledges that other factors may have contributed.
3. Program integrity. DHS cites USCIS site-visit data on extension cases. For H-1B, the combined rate of non-compliance or fraud found among sites visited was 22.39 percent in fiscal years 2022 to 2025, when deference applied, against 16.77 percent in fiscal years 2018 to 2020, when it did not. For L-1A, the figures were 24.46 percent and 18.37 percent. DHS again acknowledges that other factors may explain part of the difference.

DHS also explains why it changed its view since it proposed codifying deference, when it said deference promoted consistency, efficiency and predictability. It now says those benefits "were overstated." It considered a softer alternative, rewording the rule so that USCIS "may give deference in its discretion," and rejected it as likely to cause confusion. On reliance, DHS says the deference rule never guaranteed approval and that removing it does not change who is eligible.

Who would it affect?

The proposal would apply to all benefit requests filed on Form I-129, Petition for a Nonimmigrant Worker. DHS lists the classifications for which an extension of stay is requested on Form I-129 (91 FR 65119, footnote 5):

The groupings in the left column are ours; the list of classifications is DHS's.

DHS says deference most often comes up when the same employer seeks to extend the same worker's petition. Based on fiscal years 2022 to 2025, it estimates that about 208,429 Form I-129 petitions a year are eligible for deference, roughly 30 percent of all I-129 filings (91 FR 65119, Table 2).

For dependents of these workers, such as an H-4 or L-2 spouse, extension of stay requests may be filed on Form I-539, not Form I-129, according to the same footnote. The current rule and the proposal both refer only to Form I-129. Neither mentions Form I-140, the immigrant petition used for EB-1A, EB-2 NIW and other employment-based green cards.

Is the proposal final?

No. The Federal Register lists it as a "Proposed Rule" with the action "Notice of proposed rulemaking" and no effective date (Federal Register, document 2026-20941). The eCFR, current as of October 9, 2026, still shows 8 CFR 214.1(c)(5) in force (eCFR, 8 CFR 214.1). Until a final rule is published and takes effect, officers are still told to give deference. We cannot say whether or when a final rule will follow, or whether it will match the proposal.

How do you comment?

Anyone can comment. The notice gives these instructions (91 FR 65119):

1. Go to regulations.gov and search for DHS Docket No. USCIS-2026-0529.
2. Include the agency name (U.S. Citizenship and Immigration Services) and the docket number. Comments must be in English or come with an English translation.
3. Submit on or before November 13, 2026. The portal accepts comments before midnight Eastern time at the end of that day.

Comments sent by email or letter to DHS or USCIS officials are not treated as comments on the rule, and USCIS is not accepting mailed or hand-delivered comments. Everything you submit is posted publicly, including any personal information, so you may want to limit what you share. DHS says the most useful comments point to a specific part of the proposal, explain the reason for any change you recommend and include data, information or authority that supports it.

What would it mean for extension filings?

DHS itself expects more RFEs. Applying its 2.9 point estimate, it projects about 6,044 additional RFEs a year. It also reports that, in fiscal years 2022 to 2025, the average median processing time was 76 days for petitions that received an RFE and 12 days for those that did not (91 FR 65119). DHS lists longer adjudication times and more uncertainty about continued employment as costs to petitioners.

DHS also notes that a worker whose timely filed extension is still pending when their status expires may remain in an authorized period of stay and may be eligible to keep working. For workers in classifications including H-1B, L-1 and O-1 whose status has expired, a timely filed extension allows continued work with the same employer for up to 240 days from the end of the authorized stay, and that authorization ends automatically if the extension is denied first (8 CFR 274a.12(b)(20)).

What this means in practice: if the proposal becomes final as written, an extension would be judged on the evidence filed with it, with the earlier approval as background rather than the starting point. In our reading, that makes it sensible to prepare an extension as a complete, standalone case, to file well before the current stay ends, and to budget time for an RFE. For an O-1, that means current evidence for the criteria, not only a copy of the old petition. Our guides to O-1 validity and extensions and responding to an RFE cover the mechanics. Read this alongside our post on USCIS's August 2026 policy on denials without an RFE.

Where to start

If you are on an H-1B or L-1, partner-firm attorneys handle those extensions; Frank does not cover H-1B or L-1. If your next extension is an O-1, or you want a route that does not depend on repeated extensions, start with the free evaluation, with no account and no card, to see where your record stands for the O-1, EB-1A or EB-2 NIW. Frank then finds real opportunities for the criteria you do not yet meet. Starter is $49 a month with a 7-day free trial. Legal work is done by licensed attorneys at an independent partner firm; Green Card Guide is not a law firm, and this post is not legal advice. If you are also following other pending proposals, see the proposal to end the 60-day grace period.

Sources

All checked October 14, 2026.

• Federal Register, Removing Deference to Prior USCIS Determinations of Eligibility, 91 FR 65119 (October 14, 2026; full text on govinfo). The proposal, its history, reasons, data, alternatives, scope, costs and comment instructions.
• Federal Register, Modernizing H-1B Requirements final rule, 89 FR 103054 (December 18, 2024). The rule that codified deference, effective January 17, 2025.
• eCFR, 8 CFR 214.1 (current as of October 9, 2026). The deference rule, quoted verbatim.
• USCIS Policy Manual, Volume 2, Part A, Chapter 4 (current as of October 2, 2026). How officers apply deference today.
• eCFR, 8 CFR 274a.12(b)(20). Continued work for up to 240 days while a timely extension is pending.
• Regulations.gov. Where comments on docket USCIS-2026-0529 are filed.

Frequently asked questions

Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.