DHS Moves to End Deference Rule for H-1B Extensions

What Happened

On October 13, 2026, the Department of Homeland Security submitted for publication a [notice of proposed rulemaking](https://www.federalregister.gov/public-inspection/2026-20941/removing-deference-to-prior-determinations-of-eligibility) titled \"Removing Deference to Prior USCIS Determinations of Eligibility\" (RIN 1615-AD26, DHS Docket No. USCIS-2026-0529). The proposed rule, scheduled to publish in the Federal Register on October 14, would remove [8 CFR 214.1(c)(5)](https://www.federalregister.gov/documents/2024/12/18/2024-29354/modernizing-h-1b-requirements-providing-flexibility-in-the-f-1-program-and-program-improvements), which generally provides that USCIS gives deference to a prior approval involving the same facts when adjudicating a request to extend a petition for an alien's employment or stay.

The deference policy was codified by the December 2024 H-1B Modernization final rule (89 FR 103054, effective January 17, 2025). Under it, adjudicators generally defer to a prior determination involving the same parties and same underlying facts unless there was a material error in the prior approval, a material change in circumstances, or new adverse material information. If the new proposal is finalized, that regulation disappears and every extension petition is decided on the evidence of record, case by case.

DHS frames the change as aligning regulations with the statute — [INA section 291](https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4) places the burden of proving eligibility on the petitioner — and as strengthening adjudicatory review and program integrity. [Bloomberg Law reported](https://news.bloomberglaw.com/daily-labor-report/deference-to-prior-h-1b-worker-approvals-nixed-in-dhs-proposal) that the proposal would revive the no-deference policy from President Trump's first term.

Who's Affected

The rule applies to extension requests filed on Form I-129 across the employment-based nonimmigrant categories, including H-1B and O-1, as well as H-1B1, L-1, P, and TN classifications. (L-1 petitions are affected by the rule even though L-1 status itself is outside our usual coverage.) The population is large:

• DHS estimates the affected population at 208,429 extension petitions annually, based on the FY2022–FY2025 average of I-129 petitions eligible for deference.
• Across FY2014–FY2025, roughly 30 percent of all Form I-129 petitions were eligible for deference — 2,168,394 of 7,206,852 filings.
• Employers filing large volumes of H-1B extensions — staffing and IT services firms in particular — account for the majority of affected filings.
• O-1 extension petitioners lose the same protection: a prior extraordinary-ability approval would no longer constrain the adjudication of a subsequent extension with the same parties and facts.

What Attorneys Should Know

The deference policy has a long history: USCIS first adopted it in April 2004 guidance, rescinded it in an October 23, 2017 memorandum (PM-602-0151), reinstated it in April 2021, and codified it in December 2024. The proposal is a direct reversal of DHS's own position in the Modernization final rule, where the agency rejected commenters' concerns that codifying deference would constrain officers' fact-finding authority. DHS now says it has \"reconsidered the issue\" and believes the codification may have had \"the unintended effect of appearing to constrain USCIS officers' fact-finding authority, leading some USCIS officers to conduct a less than fulsome review.\"

The evidentiary basis DHS cites is site-visit data: for H-1B extension cases, the combined percentage of fraud and/or non-compliance among sites visited was 22.39 percent in FY2022–FY2025 (deference in effect), versus 16.77 percent in FY2018–FY2020 (no deference). DHS acknowledges other factors may have contributed but concludes deference was \"one of the contributing factors.\" For L-1A extension cases the comparable figures were 24.46 percent versus 18.37 percent.

DHS's own regulatory analysis projects roughly 6,044 additional RFEs annually from removing deference and about $133,987 in new annual costs to petitioners — modest numbers that suggest the agency does not expect approval rates to collapse, but practitioners should expect more RFEs on extensions and prepare initial-evidence-quality filings every time.

Comments are due 30 days after publication (on or around November 13, 2026) via [regulations.gov](https://www.regulations.gov), Docket No. USCIS-2026-0529. A final rule would follow after the agency reviews comments; timing beyond that is not specified. Until a final rule is effective, the codified deference regulation at 8 CFR 214.1(c)(5) remains in force.

What Applicants Should Do

• Treat every extension as if it were an initial petition: assemble the full evidentiary record — position description, credentials, wage documentation, and work-location details — rather than relying on the prior approval to carry the case.
• Employers with materially changed circumstances (reduced operations, altered job duties, changed work sites) should disclose and document those changes proactively; under the proposal, expecting a prior approval to bind USCIS is no longer a safe assumption.
• Cap your exposure on timing: if an extension is approaching, consider premium processing so a fresh-review RFE does not push the worker past the end of valid status.
• Attorneys and employers with data on deference's real-world effects should file comments by the deadline — the docket is the only formal channel, and DHS explicitly solicits data and argument on all aspects of the proposal.
• Watch the docket: the rule is proposed, not final. Nothing changes until a final rule is effective — but do not build filing strategy around deference surviving.