If you hold H-1B or L-1 status and your next extension is coming up, you have probably seen messages in chat groups like "H-1B extensions will no longer look at the last approval" or "every extension will be a brand-new review."
The short answer: this is a proposed rule, published in the Federal Register on October 14, and nothing about how extensions work today has changed. It proposes to delete the rule that tells USCIS to start from the earlier approval when it reviews an extension. Even if it is finalized, it would only apply after a final rule is published, and this proposal does not give an effective date.
The proposal comes from USCIS, part of the Department of Homeland Security (DHS). It is titled "Removing Deference to Prior USCIS Determinations of Eligibility," RIN 1615-AD26. Here is what matters for you.
01 What is "deference to the last approval"?
The current regulation, 8 CFR 214.1(c)(5), works like this: when the same employer files an extension for the same person on the same facts (on Form I-129, the nonimmigrant worker petition), USCIS generally defers to the earlier approval, unless the earlier approval had a material error, circumstances have materially changed, or new adverse material information has come up.
"Deference" does not mean "automatic approval." The rule has always said the burden of proving eligibility stays with the employer. What deference does is set the starting point: the review begins from "this was approved before." An officer who wants to depart from the earlier approval has to say so in the Request for Evidence (RFE), Notice of Intent to Deny (NOID) or denial, acknowledge the earlier approval, and explain why this time is different. Under the Policy Manual, the officer also has to give you a chance to respond.
The proposal would delete that provision entirely. According to the rule, officers could still consider the earlier approval, but would no longer be required to start from deference.
The history is short and has flipped back and forth:
| When | What happened | Source |
|---|---|---|
| April 2004 | A USCIS memo first told officers to defer to prior approvals | Background section of this proposal |
| October 2017 | A USCIS memo (PM-602-0151) rescinded that approach | Background section of this proposal |
| April 27, 2021 | A USCIS policy update restored deference and put it in the Policy Manual | USCIS announcement |
| Published December 18, 2024; effective January 17, 2025 | The H-1B modernization rule wrote deference into the regulation, which is today's 8 CFR 214.1(c)(5) | Federal Register, 89 FR 103054 |
In short: deference began in 2004, was rescinded in 2017, was restored in 2021, was written into the regulation in 2025, and is now proposed for removal again.
02 Does this affect me?
According to the rule's text, the change applies to the various kinds of requests filed on Form I-129, not just H-1B. A footnote lists the classifications that can extend on Form I-129: E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P classifications, Q-1, R-1 and TN. Find your situation:
- H-1B extension, same employer, same job: this is exactly what the provision covers. Under the proposal, officers would no longer start from "it was approved last time" at your next extension; they would review the package as if it were new.
- L-1, O-1 and other classifications that extend on Form I-129: also covered; the rule does not treat them separately.
- A new employer filing for you: the current text refers to "the same parties and the same facts." A new employer is not the same party as your old one, so deference did not apply to that situation in the first place.
- Spouses and children extending on Form I-539 (the application to extend or change status): the rule's text is about Form I-129; it does not address Form I-539 separately.
- Not yet in H-1B status: the provision only covers extensions. The lottery and first-time petitions are not part of this proposal.
How big is it? DHS's own data: in fiscal years 2022 through 2025, there were about 688,830 Form I-129 petitions a year on average, and about 208,429 of them (30%) were the kind deference can apply to, mainly extension requests.
03 What does DHS say would happen if deference is removed?
First DHS's reasons, then its estimates.
It gives two reasons. First, the law puts the burden of proving eligibility on the applicant, and DHS now believes deference in practice shifts that burden to the officer, who has to justify departing from the earlier approval. Second, it believes some officers, because of the deference rule, did not review extensions carefully and were reluctant to issue RFEs. It also cites its own site-visit data: among H-1B extension employers visited in fiscal years 2022 through 2025, 22.39% were found non-compliant or to have fraud, compared with 16.77% in fiscal years 2018 through 2020, when there was no deference. For L-1A it is 24.46% versus 18.37%. DHS itself writes that other factors may have contributed to the difference.
DHS also admits something: the benefits it cited in 2024 when it put deference into the regulation are now, in its view, "overstated."
Its estimated effects:
- More RFEs. Comparing the years from 2017 to 2021 when there was no deference, DHS estimates the RFE rate would rise by about 2.9 percentage points, or roughly 6,044 more RFEs a year.
- Cases with an RFE take much longer. In fiscal years 2022 through 2025, the median time to an initial decision averaged 76 days for petitions with an RFE and 12 days for those without, a difference of 64 days.
- Denial rates are not expected to change. DHS checked denial rates during the years without deference, found no change, and does not expect a change.
- Employers may prepare more thorough packages. The rule says employers might put together a more complete package from the start instead of relying on the earlier approval, which would add preparation time and cost; DHS says it cannot quantify this.
What it means for you: by DHS's own estimate, the biggest change is not "easier to be denied," but a higher chance of receiving an RFE and a longer wait. The rule also notes that when an extension was timely filed and is still pending when your status expires, the beneficiary may remain in the United States in an authorized period of stay while waiting, and may be eligible to continue working (it cites 8 CFR 274a.12(b)(20)).
04 What this is not
Chat-group versions tend to overshoot. The rule's text does not say any of these:
- It is not in effect. Everyone's extension is still handled the current way, and the deference provision is still in the Policy Manual.
- It does not say the earlier approval stops counting. DHS writes that officers may still consider a prior approval; they would just no longer be required to start from deference.
- It does not change the eligibility requirements. The rule says that removing deference does not substantively change eligibility for the benefit.
- It does not say extensions will be denied. As noted above, DHS's own data does not show denial rates changing.
- It does not touch the lottery, the cap or fees. The proposal deals only with 8 CFR 214.1(c)(5). Other H-1B reform proposals are separate rules; see the H-1B reform rule tracker.
05 When could it take effect?
There is no date. A proposed rule has to go through these steps before it becomes a real rule:
- October 14 (published): the proposed rule appeared in the Federal Register (91 FR 65119).
- A 30-day public comment period: counted from publication, the deadline is November 13, 2026, as printed in the Federal Register version. The federal docket system accepts comments until midnight Eastern time that day.
- DHS reads the comments and then issues a final rule: there is no deadline for this step, and the content could change, or the process could stop here.
- The final rule states an effective date: this proposal gives no effective date and does not say what happens to petitions already filed and pending.
So anyone filing an extension today or next month is still following the current process.
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06 What can you do now?
- Nothing about your extension has to change. The current regulation is still in force, and will remain so until this proposal is finalized.
- If you want to comment, you can. Search regulations.gov for docket number USCIS-2026-0529 (regulations.gov). Comments must be in English, and the deadline is November 13, 2026 (midnight Eastern time). The rule says emails and letters sent through other channels do not count as formal comments, and comments are posted publicly along with any personal information you include, so leave out anything you don't want public. The rule also says the comments most useful to USCIS cite a specific part of the proposal, give the reason, and include supporting data.
- To understand your own case, ask your company's immigration attorney. They know best how your company's extension package is put together.
All of our H-1B coverage is on the H-1B topic page. Related reading: H-1B and L-1 extension fee scope expanded, the H-1B executive order on layoffs, and the proposed 60-day H-1B grace period change.
We will keep writing as things move: a final rule or a lawsuit.
Sources
- Proposed rule: Department of Homeland Security, Removing Deference to Prior USCIS Determinations of Eligibility, notice of proposed rulemaking, RIN 1615-AD26, Docket No. USCIS-2026-0529, Federal Register document number 2026-20941, published October 14, 2026, 91 FR 65119 (public inspection PDF, 46 pages; Federal Register page)
- Current rule: 8 CFR 214.1(c)(5); Policy Manual Volume 2, Part A, Chapter 4
- Scope and classifications: Section II.A and C of the preamble, footnote 5
- History: Section II.D of the preamble; USCIS announcement of April 27, 2021; H-1B modernization final rule, 89 FR 103054
- RFE and processing-time estimates: Section IV.A of the preamble (Tables 2 and 3 and the unquantified-costs discussion)
- Site-visit data: Section III.C of the preamble
- How to comment: the DATES and ADDRESSES sections and Section I of the rule
Statements from the rule are paraphrased from the English original. This article is not legal advice; for the details of your extension, consult your company's immigration attorney.