DHS Proposes Ending Deference to Prior USCIS Approvals for H-1B Extensions

The Department of Homeland Security proposed ending the requirement that U.S. Citizenship and Immigration Services generally defer to earlier approvals when reviewing certain work-status extensions. Published on October 14, 2026, the proposal covers H-1B and other nonimmigrant worker petitions filed on Form I-129.

Employers filing extensions and the workers named in them could face renewed eligibility reviews, even when the job and employment circumstances remain the same. The proposal is not final, and the current regulation remains in force unless a final rule takes effect.

Under the existing regulation, officers generally give weight to a previous approval when the extension involves the same employer, worker and underlying facts. The rule allows officers to depart from that approval if it contained a material error, circumstances or eligibility requirements materially changed, or new adverse material information emerged.

If finalized, the proposal would remove that required deference. Officers could still consider an earlier approval, but would not have to treat it as the starting point. DHS says the change would reinforce the petitioner’s burden to establish eligibility, allow fuller fact-finding and reduce the risk of carrying an earlier error into later decisions.

Earlier approvals would no longer anchor extension reviews

The proposed change would delete 8 CFR 214.1(c)(5) and mark the paragraph “Reserved.” It would undo a provision DHS added through a 2024 final rule that took effect January 17, 2025.

DHS’s position is that the current approach can constrain officers when they consider whether a petition establishes eligibility. The department also argues that prior decisions should not prevent officers from seeking more evidence or reassessing a question that an earlier approval addressed.

That could include whether a position meets the specialty-occupation requirements. An extension could receive fresh scrutiny even if the employee remains with the same employer in an unchanged role.

208,429 measures filings, not people

DHS estimates that 208,429 petitions a year could be affected. The estimate counts potentially eligible Form I-129 petitions across classifications, not a tally of individual workers who will lose status.

Covered categories include H-1B, L-1, O-1, TN and E workers, among other nonimmigrant classifications. DHS says H-1B petitions make up more than 75% of Form I-129 filings, so the proposal reaches beyond one visa category.

USCIS reported that 77.6% of FY 2025 approvals for continuing H-1B employment went to workers born in India. DHS also found that 57% of classifiable employers filing H-1B extensions that year were small entities; the median small entity filed one petition.

More review could mean evidence requests, not automatic denials

A fresh review could lead officers to ask employers for additional documents or revisit previously approved eligibility issues. That could add work for employers and lengthen processing, although the proposal does not itself change the requirements for eligibility.

DHS says historical denial rates showed no statistically significant difference between periods with and without deference. The potential effects described in the proposal include more evidence requests and delays, not an automatic denial of an extension.

A timely filed extension generally lets an H-1B worker continue working for up to 240 days after the I-94 expires while the petition remains pending, subject to applicable rules. Longer waits could affect travel plans, including trips abroad for a new visa stamp.

Comments close November 13 under the listed docket

The current regulation remains effective while the proposal is pending. DHS has not said whether or when it will issue a final rule on deference.