DHS Proposes Scrapping the "Deference" Rule for H-1B, L-1, and Other Extension Petitions

On October 14, 2026, DHS published a notice of proposed rulemaking titled "Removing Deference to Prior USCIS Determinations of Eligibility." It targets a single, narrow-looking provision — 8 CFR 214.1(c)(5) — but that provision is the regulatory basis for a practice nearly every H-1B and L-1 extension filer currently relies on: USCIS starting from, rather than against, its own earlier approval when nothing about the job or the employer has changed. If finalized, this proposal would remove that starting point for every classification filed on Form I-129, not H-1B alone.

What we know from the Federal Register

• RIN: 1615-AD26
• DHS Docket No.: USCIS-2026-0529
• CIS No.: 2870-26
• Citation: 91 FR 65119
• Federal Register document number: 2026-20941
• Agency / Subagency: Department of Homeland Security (DHS) / U.S. Citizenship and Immigration Services (USCIS)
• Action: Notice of proposed rulemaking (NPRM) with request for comments
• Published: October 14, 2026
• Comment period: through November 13, 2026
• Effective date: none yet — this is a proposal, not a final rule; the current deference regulation stays in force until and unless DHS finalizes this change

DHS proposes to remove 8 CFR 214.1(c)(5), which generally provides that USCIS will give deference to a prior determination of eligibility involving the same parties and the same underlying facts when adjudicating a request to extend the validity of a petition or application, absent a material error, a material change in circumstances, or new material information adversely affecting eligibility.DHS/USCIS, Federal Register, 91 FR 65119 (October 14, 2026), as summarized by AILA and Duane Morris

What "deference" currently does, and why it exists in regulation at all

The deference concept is older than this regulation. USCIS first adopted it as internal policy guidance in a 2004 memo, instructing adjudicators to generally defer to a prior approval when a later petition for the same worker and employer involved no material change. The first Trump administration rescinded that guidance in October 2017 (Policy Memorandum PM-602-0151), directing officers to give every extension the same scrutiny as an initial filing. The Biden administration reversed course again in April 2021, reinstating deference as policy, tied to a February 2021 executive order on restoring faith in the legal immigration system. What makes this round different: DHS's December 2024 "H-1B Modernization" final rule — effective January 17, 2025 — took the unusual step of writing deference directly into the Code of Federal Regulations at 8 CFR 214.1(c)(5), rather than leaving it as guidance in the USCIS Policy Manual. That is exactly why undoing it this time requires full notice-and-comment rulemaking, the process now underway, rather than a policy memo like the ones that flipped this back and forth in 2017 and 2021.

DHS's stated rationale

DHS frames the deference regulation as inconsistent with INA § 291 (8 U.S.C. § 1361), which places the burden of proving eligibility for an immigration benefit on the petitioner, applicant, or beneficiary — not on USCIS. In DHS's reading, requiring an officer to defer to a prior approval unless they can affirmatively identify a material error, a material change, or new adverse information effectively flips that burden: the officer, not the petitioner, has to do the work of justifying a different outcome. The proposal would not bar an officer from considering a prior approval where it is relevant — DHS is explicit that officers may still look at it — but it removes the requirement that they start from a presumption in its favor.

Who this reaches

This is not an H-1B-only proposal. 8 CFR 214.1(c)(5) by its terms covers every nonimmigrant worker classification filed on Form I-129, so the change would reach H-1B, L-1, O-1, E, TN, and P extension petitions alike, whenever the extension involves the same employer and the same underlying facts as a petition USCIS already approved. It bites hardest on routine same-employer, same-job extensions — the filings that, under current rules, are the ones most likely to get the benefit of deference in the first place.

DHS's own numbers on the expected impact

• DHS estimates roughly 208,429 petitions a year currently receive deference under the existing regulation.
• DHS's own projection is about 6,044 additional Requests for Evidence annually once deference no longer applies — its estimate of how many extensions will need a second look that would not have needed one otherwise.
• The Federal Register notice itself acknowledges that other recent changes — not deference alone — may also be contributing to a rising RFE rate, so DHS's 6,044 figure is its estimate of this rule's specific contribution, not a claim that deference is the only driver.
• DHS does not project any change in approval rates from this proposal alone — removing deference changes how closely a petition is scrutinized before a decision, not the underlying eligibility standard itself.

How this connects to USCIS's other recent moves on evidence and RFEs

This proposal lands two months after USCIS Policy Alert PA-2026-05 restored officers' discretion to deny a filing outright without issuing an RFE or NOID first when required initial evidence is missing (see our earlier article). The two changes point in the same direction but work differently: PA-2026-05 was Policy Manual guidance, took effect immediately on August 5, 2026, and governs what happens when evidence is missing from a filing. This deference proposal is a formal regulatory change, is not yet in effect, and governs the separate question of how much weight a prior USCIS approval carries when a petitioner files to extend it. Together, a petitioner filing a same-employer H-1B extension today still gets the benefit of deference; if this rule is finalized, that petitioner would face full re-adjudication on a filing that could then also be denied outright if DHS's November decision, whatever it is, finds the evidence lacking under PA-2026-05's standard.

What has not happened yet

• Nothing changes about how USCIS adjudicates an H-1B, L-1, or other I-129 extension today. The current deference regulation remains in force while DHS reviews public comments.
• No effective date has been set — none can be, procedurally, until DHS reviews comments submitted by November 13, 2026 and either finalizes the rule (with its own effective date), revises it, or withdraws it.
• DHS has not proposed changing who is eligible for H-1B, L-1, or any other nonimmigrant classification — this proposal is about adjudication process, not substantive eligibility criteria.

What to do while this is pending

• If you have an H-1B, L-1, or other I-129 extension to file in the coming months, current deference rules still apply — this proposal gives no reason to rush a filing before any particular date, since no effective date exists yet.
• Employers should start treating every extension petition — even a routine same-employer renewal — as if it needs to stand on its own evidentiary record: current job duties, worksite details, wage and payroll documentation, and the specialty-occupation or classification analysis, rather than leaning on the prior approval to carry the case.
• If you want to weigh in, DHS is accepting public comments on this specific proposal through November 13, 2026 via regulations.gov under docket USCIS-2026-0529.
• Watch for a final rule or a withdrawal notice after the comment period closes — immigration counsel are not expecting either before early 2027 given the volume of comments a change this broad is likely to draw.

Bottom line

As of October 14, 2026, DHS has proposed — not finalized — removing the regulation that currently tells USCIS to defer to its own prior approval on a same-employer, same-facts H-1B, L-1, or other I-129 extension. Today's filings still get that deference. If this rule is finalized after the November 13, 2026 comment period, expect more RFEs and longer processing on exactly the kind of routine extension that currently sails through fastest — budget both time and documentation accordingly, especially for any extension you expect to file in 2027.