Proposed Rule Would End USCIS Deference on Work Visa Extensions: What Applicants Should Know

On October 14, 2026, the Department of Homeland Security published a proposed rule in the Federal Register that could change how USCIS reviews some work visa extension requests. The proposal is called "Removing Deference to Prior USCIS Determinations of Eligibility." It is only a proposal. It is not a final rule, and the way extensions are reviewed today has not changed. What is deference? Right now, a USCIS regulation at 8 CFR 214.1(c)(5) generally asks officers to give weight to an earlier approval when a new request involves the same parties and the same underlying facts. The officer starts from the position that the earlier decision was correct. There are exceptions, such as a material error, a material change, or new information that affects eligibility. What the proposal would do is delete that regulation. Officers could still look at a prior approval when it is relevant. They would simply not be required to start from that point. The notice says the change would apply to all benefit requests filed on Form I-129, the Petition for a Nonimmigrant Worker. That form is used for H-1B workers, and also for categories such as L-1, O-1, TN and E workers. Why does this matter? DHS estimates that the change could lead to about 6,044 more requests for evidence each year. A request for evidence is a letter asking for more documents before a decision is made. Requests like this can add weeks or months to a case. According to reports on DHS's own data, the agency did not estimate a matching rise in denials. Here is the timeline. The public comment period closes on November 13, 2026. After that, DHS may issue a final rule, change the proposal, or withdraw it. The proposal does not include an effective date. Until a final rule takes effect, the current rule still applies. What this means for you: If you have an H-1B, L-1, O-1, TN or other Form I-129 extension coming up in the next year, start preparing now. Keep copies of your prior approval notice, your job description, your degree evidence, your pay records and proof of your current status. Do not assume that a past approval will automatically settle every question. If your employer is filing an extension, ask them to prepare the file as carefully as a first-time petition. Do not change your plans only because of this proposal. Anyone can send a comment about the proposal during the comment period, using docket number USCIS-2026-0529. Employers, workers and advocacy groups often do this, and it is one way the public can take part in the process. Separately, a September 18, 2026 executive order asks federal agencies to consider whether an H-1B employer has recent or planned layoffs when reviewing certain H-1B cases. The order does not create an automatic denial rule, but it may lead to more questions or requests for evidence for some employers. If you are worried about how these changes affect your case, check your receipt number on uscis.gov and talk to an immigration attorney. An attorney can review your full history, including any prior denials, changes of employer or upcoming deadlines. This article is general information, not legal advice. Sources: Federal Register: Removing Deference to Prior USCIS Determinations of Eligibility: https://www.federalregister.gov/documents/2026/10/14/2026-20941/removing-deference-to-prior-uscis-determinations-of-eligibility Federal Register PDF (FR-2026-10-14, document 2026-20941): https://www.govinfo.gov/content/pkg/FR-2026-10-14/pdf/2026-20941.pdf USCIS Deference Proposal: H-1B, L-1 and O-1 Extensions: https://meltzerhellrung.com/dhs-proposes-ending-deference-to-prior-approvals-what-h-1b-l-1-and-o-1-extensions-could-look-like-in-2027/ H1-B New Rule: Why Your Next Extension Could Get an RFE: https://consultadd.com/blog/h1-b-new-rule-what-ending-deference-means-for-extensions Photo: Arthur Lambillotte on Unsplash