DHS Proposes Ending Deference on H-1B, L-1 and Other Worker Extensions, Projecting About 6,000 More Evidence Requests a Year

The Department of Homeland Security has proposed scrapping the rule that tells immigration officers to defer to their own earlier approvals when an employer asks to extend an H-1B, L-1 or other temporary worker in the same job. The proposal, filed for public inspection on Oct. 13 and scheduled for Federal Register publication on Oct. 14, would delete 8 CFR 214.1(c)(5) and turn every extension filed on Form I-129 into a fresh review of eligibility. By DHS’s own estimate, the change would generate about 6,000 additional requests for evidence a year.

For employers, deference has been the closest thing to a promise that a case approved three years ago will be approved again on the same facts. Losing it would add another layer of uncertainty for the same workforce already facing the $100,000 H-1B payment now before three federal appeals courts and a September proposal to end the 60-day grace period after a job loss. Bloomberg Law reported the proposal on Oct. 13.

A policy that has flipped three times

Under the current regulation, when an extension petition involves the same parties and the same underlying facts, USCIS defers to its prior finding of eligibility unless there was a material error, a material change, or new material information that undercuts eligibility. The rule reaches every classification that can be extended on Form I-129, including E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, L-1, O-1, P, R-1 and TN.

Deference began as a 2004 USCIS memo, was rescinded in October 2017, was restored in the USCIS Policy Manual in April 2021 and was written into regulation by the December 2024 H-1B modernization rule. The agency’s central argument is legal: under section 291 of the Immigration and Nationality Act the petitioner carries the burden of proof, and DHS says deference “effectively shift[s]” that burden to the officer. The proposal says officers could still consider a prior approval “where relevant.” It simply would no longer control the outcome.

What DHS’s numbers show, and what they don’t

DHS counts 688,830 Form I-129 petitions a year on average from fiscal 2022 through 2025, of which 208,429, or about 30 percent, were eligible for deference. To estimate the effect, the agency compared request-for-evidence rates during the period when deference applied with the 2017 to 2021 period when it did not.

Applied to the deference-eligible caseload, that 2.9-point gap yields the agency’s estimate of about 6,044 extra evidence requests a year. DHS’s data also show that petitions drawing a request took 76 days on average to decide, against 12 days for those that did not. Yet the agency puts the yearly cost at just $133,987, or $22.17 per request, because it monetizes only the time spent preparing responses, not the delays.

The integrity case rests on site visits. DHS reports that H-1B extensions checked in fiscal 2022 through 2025, when deference applied, showed noncompliance or fraud 22.39 percent of the time, against 16.77 percent in fiscal 2018 through 2020. For L-1A extensions the figures were 24.46 and 18.37 percent. Those comparisons span different years and enforcement priorities, so they show a correlation, not proof that deference caused the rise. DHS also acknowledges finding no corresponding change in denial rates when deference was absent. In our reading, that is the most telling number in the document: the 2017 to 2021 experience produced more evidence requests, but not, by the agency’s own measure, more denials.

Who would feel it first

The workers most exposed are those with long histories of approvals: H-1B professionals on their third or fourth extension, including those staying past the six-year limit while a green card is pending, L-1 managers whose qualifying role was accepted years ago, and TN and R-1 workers renewing in the same position. Workers with a timely filed extension generally remain in an authorized stay while it is pending, and H-1B and L-1 workers can keep working for the same employer for up to 240 days after their I-94 expires. A long evidence-request cycle eats into that cushion, and it leaves workers who need a new visa stamp abroad waiting longer for the approval notice.

The proposal does not say whether it would apply to petitions already pending when a final rule takes effect, a gap commenters are likely to press DHS to close.

Dates and documents to watch

• Comment deadline: 30 days after publication, which would be Nov. 13 if the rule appears on Oct. 14 as scheduled. DHS will accept comments only through regulations.gov, docket USCIS-2026-0529.
• The final rule: watch for an effective date and any transition language for pending petitions, which the proposal leaves open.

This article is for general information and is not legal advice.

Sources

• DHS proposed rule, Removing Deference to Prior Determinations of Eligibility, Federal Register public inspection document 2026-20941 (filed Oct. 13, 2026)
• Full text of the proposed rule (PDF), including USCIS petition, RFE and site-visit data
• DHS final rule, Modernizing H-1B Requirements, 89 FR 103054 (Dec. 18, 2024)
• DHS proposed rule, Eliminating the Discretionary 60-Day Grace Period (Sept. 11, 2026)
• Bloomberg Law: Deference to Prior H-1B Worker Approvals Nixed in DHS Proposal (Oct. 13, 2026)

About the Author

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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