USCIS Deference Rule: Comments Close Nov. 13

The public comment period on the USCIS deference rule ends at midnight Eastern time on Nov. 13. What DHS does with those comments will decide whether an approval on a worker’s last extension counts for anything on the next one.

Employers and universities have until midnight Eastern time on Friday, Nov. 13, to comment on the USCIS deference rule. The Homeland Security Department proposal would end the requirement that officers defer to their own earlier approvals when a petitioner asks to extend an H-1B, L-1, O-1, TN, E-3 or other temporary worker on the same facts. Published Oct. 14 at 91 FR 65119, the proposed rule would delete 8 CFR 214.1(c)(5), so every extension filed on Form I-129 would get a fresh look at eligibility. Comments are accepted only through regulations.gov under docket USCIS-2026-0529.

The deadline arrives as DHS works through a set of rules aimed at the same workforce. Comments have already closed on the plan to repeal the 60-day H-1B grace period. The Labor Department’s prevailing wage final rule is under White House review. Together they would make every renewal of a long-term H-1B or L-1 worker costlier and less predictable.

How many extensions the USCIS deference rule reaches

DHS counts an average of 688,830 Form I-129 petitions a year in fiscal 2022 through 2025. Of those, 208,429, or about 30 percent, were eligible for deference because they involved the same employer, the same worker and the same underlying facts. The agency projects roughly 6,044 additional requests for evidence a year once deference ends. In USCIS data cited in the rule, petitions that drew a request averaged 76 days to a decision, compared with 12 days for those that did not.

DHS values the whole burden at $133,987 a year, or $22.17 per evidence request. The figure counts only the time spent preparing a response. It assigns no cost to a worker whose 240-day work authorization during a pending extension runs down, or to one stuck abroad awaiting an approval notice for a new visa stamp, a gap commenters are likely to press.

The agency’s integrity case rests on site visits. H-1B extensions inspected in fiscal 2022 through 2025, when deference applied, showed noncompliance or fraud 22.39 percent of the time, compared with 16.77 percent in fiscal 2018 through 2020, when it did not. DHS also concedes that it found no matching change in denial rates during the 2017 to 2021 period without deference. Those findings pull against each other: by the agency’s own record, dropping deference produced more paperwork but not measurably more denials. Earlier coverage looked at the full cost and data tables and at which workers would feel it first.

The argument that matters most in court

According to IANS, the University of Michigan filed comments urging DHS to withdraw the proposal. The university argued that the change would let USCIS reach a different result without explaining why it was departing from its earlier finding, which would add uncertainty and burden for petitioners. It also said USCIS already has authority to correct petitions approved in error. That account rests on a single IANS report.

That point about explanation is the one most likely to resurface in litigation. DHS rests its case on Section 291 of the Immigration and Nationality Act, which puts the burden of proof on the petitioner, and says deference effectively shifts that burden to the officer. The proposal does not forbid officers from considering a prior approval. It only says they would not be bound by it. Under the Administrative Procedure Act, a final rule must respond to significant comments. A rule that lets an agency reverse its own approval on identical facts with no stated reason invites the claim that individual denials are arbitrary, even if the rule itself survives.

The policy has reversed before: a 2004 memo, rescinded in 2017, restored in 2021 and codified by the December 2024 H-1B modernization rule. Codification is why DHS needs notice-and-comment rulemaking this time rather than a memo.

What happens after Nov. 13

Current rule stays in force: deference still applies to extensions USCIS decides before a final rule takes effect.
Pending petitions: the proposal does not say whether a final rule would reach extensions already on file on its effective date. Watch for transition language in the final text.
Final rule path: DHS must review and answer the comments, then send a final rule to the White House Office of Information and Regulatory Affairs before publication.

For employers planning renewals in 2027, the practical effect is that a clean approval history may no longer carry a case. Extension filings that document the job, the worker’s qualifications and the employer’s compliance as if they were new petitions are likely to fare better under either version of the rule.

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

Sources

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 an LL.M. from California Western School of Law, San Diego 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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