Today, when you extend an H-1B with the same employer and nothing has changed, U.S. Citizenship and Immigration Services (USCIS) generally defers to its earlier approval. A proposal published October 14, 2026 would end that rule. DHS estimates it would affect about 208,000 petitions a year and lead to roughly 6,000 more requests for evidence. Comments close November 13, 2026. A Waukegan, IL Immigration lawyer can help H-1B workers and employers prepare extension petitions, respond to requests for evidence, and understand how proposed changes to USCIS review policies could affect their cases.

Key Takeaways

Deference is still in effect. Nothing changes unless DHS issues a final rule.
The proposal covers every Form I-129 petition, including H-1B, L-1, O-1, TN and E visas.
A prior approval would still count as evidence. It just wouldn’t be the starting point anymore.
Plan for every extension as if it were a brand-new case.

If you’ve been on an H-1B for a few years, your extensions have probably felt routine. Same job, same employer, same paperwork, approved. That could change. Here’s what “deference” means and what you can do before the rule is final.

What Is Deference and Why Does It Matter?

Deference means USCIS generally follows its earlier decision when it reviews an extension with the same employer, the same worker and the same facts.

Under the current rule, USCIS can only depart from a prior approval if:

the earlier approval was based on a material error,
something material has changed, or
new information has come up that hurts eligibility.

In plain terms, the burden is on USCIS to explain why a case it approved before shouldn’t be approved again. Without deference, the burden goes back to you and your employer to prove eligibility from scratch every time.

What Would the Proposed Rule Change?

It would delete the regulation that requires deference, 8 CFR 214.1(c)(5). DHS published the proposal on October 14, 2026, under docket USCIS-2026-0529.

Officers could still look at your earlier approval. But they wouldn’t have to start from it, and they wouldn’t need a special reason to question the same facts again.

DHS’s stated reasons:

It says the law puts the burden of proof on the petitioner in every filing.
It says officers review extensions less closely when deference applies.
It points to site visit data. DHS says it found fraud or noncompliance at about 22% of H-1B extension sites it visited from FY2022 to FY2025, when deference applied. The figure was about 17% from FY2018 to FY2020, when it didn’t.

How Many People Would It Affect?

A lot, and the impact would not be spread evenly.

Measure	Figure
I-129 petitions affected each year (DHS estimate)	About 208,000
H-1B share of all I-129 filings	More than 75%
Expected rise in RFE rate	About 3 percentage points, or roughly 6,000 more RFEs a year
Average added processing time when an RFE is issued	64 days
H-1B approvals for continuing employment in FY2024	About 258,000
Share of those that went to Indian-born workers	About 79%

The added processing time is the part most people will feel. An RFE adds about two months on average, and for workers counting down to an I-94 expiration, that time matters.

Hasn’t This Happened Before?

Yes. Deference has gone back and forth four times:

2004: USCIS adopted deference in a policy memo.
2017: USCIS dropped it. Practitioners saw extension RFEs rise afterward.
2021: USCIS brought it back in the Policy Manual.
2024: It was written into regulation as part of the H-1B modernization rule.

This proposal would undo the 2024 regulation. If you went through H-1B extensions between 2017 and 2021, you’ve already seen what this looks like.

What Else Is Making H-1B Extensions Harder?

Deference isn’t the only change. Three others are already in effect or close to it:

Extension fees for H-1B-heavy employers. Since September 9, 2026, employers with 50 or more U.S. employees, where more than half hold H-1B or L-1 status, pay $4,000 on H-1B extensions.
The layoff executive order. Since September 18, 2026, agencies must consider an employer’s layoffs in the past year, and planned layoffs, when reviewing H-1B filings. That includes extensions.
The end of automatic work permit extensions. H-4 spouses renewing their work permits no longer get an automatic extension while USCIS processes the renewal. See what H-4 spouses need to know.

What Should Workers and Employers Do Now?

Workers:

Know your I-94 expiration date and file early. H-1B extensions can be filed up to six months ahead.
Make sure your actual day-to-day work matches the job description on file.
Keep pay stubs and W-2s showing you were paid at least the wage on your petition.
If you’ve changed duties, work location or hours, tell your employer before the extension is filed.

Employers:

Treat every extension as a full filing. Include fresh evidence of the job, the wage and the business need.
Don’t rely on “see prior approval” as your main argument.
Budget for premium processing if the worker’s I-94 is close to expiring.
Review recent layoffs in similar roles before filing.

Our advice: the extensions most likely to hold up are the ones where the paperwork and the real job match exactly. Small gaps that never mattered under deference can turn into RFEs without it.

To comment: Go to regulations.gov and search docket USCIS-2026-0529 before November 13, 2026.

Frequently Asked Questions

What is deference in H-1B extensions?

It’s the rule that USCIS generally follows its earlier approval when an extension involves the same employer, worker and facts. USCIS can only depart from it for a material error, a material change or new adverse information.

Has the deference rule been removed?

No. It’s a proposal. Deference stays in effect until DHS publishes a final rule and it takes effect.

Which visas would lose deference?

All petitions filed on Form I-129, including H-1B, L-1, O-1, TN, E and P visas.

Will this mean more RFEs on H-1B extensions?

DHS expects about 6,000 more RFEs a year. When deference ended in 2017, practitioners saw extension RFEs rise.

When should I file my H-1B extension?

As early as allowed, which is up to six months before your current approval ends. Early filing gives you time to answer an RFE.

Does this affect H-1B transfers to a new employer?

Deference applies to the same parties and facts, so it mostly matters for same-employer extensions. A transfer to a new employer is already reviewed as a new petition.

How do I comment on the deference proposal?

Go to regulations.gov and search docket USCIS-2026-0529. Comments close November 13, 2026.

Have an Extension Coming Up?

Extensions are about to get more scrutiny. Dworsky Law Firm in Northbrook helps professionals and employers in the Chicago area and nationwide prepare H-1B, O-1 and L-1 extensions that stand on their own.

Book a free 15-minute consultation to review your extension timeline.

Sources

This article is general information, not legal advice. Immigration rules change often. Talk to an attorney about your situation.

Your H-1B Extension Could Get Harder. What the End of “Deference” Means.