Does this affect my extension now?

No. This is a proposed rule. The deference regulation, 8 CFR 214.1(c)(5), is still in force today. It goes away only if DHS publishes a final rule and that rule takes effect.

Which visas are covered?

Every classification filed on Form I-129. DHS lists E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, P-1S, P-2S, P-3S, Q-1, R-1 and TN. Dependents such as H-4 or L-2 spouses file their own extensions on Form I-539, which is not the form this regulation covers. Their status still depends on the principal worker’s.

Does it make extensions harder to qualify for?

Not on paper. DHS says the rule “does not substantively change eligibility.” What changes is the starting point: the officer no longer begins from the earlier approval, and the employer has to show continued eligibility with the evidence it files. DHS expects more RFEs. Its analysis of past periods without deference found a higher RFE rate but no corresponding change in denial rates.

Can I keep working while an extension is pending?

That rule is separate and the proposal does not change it. If your employer files the extension on time, H-1B, L-1, O-1, E, P, R and TN workers, among others, may keep working for the same employer for up to 240 days after their authorized stay ends, while USCIS decides (8 CFR 274a.12(b)(20)). DHS cites this rule in the proposal. Longer processing after an RFE uses more of that 240-day window.

I’m on an O-1. What would be different?

An O-1 extension is filed to continue or complete the same event or activity, with a statement explaining the reasons for the extension (8 CFR 214.2(o)(11) and (o)(12)). Today, deference means the earlier finding that you meet the O-1 standard generally carries over if the facts are the same. Without it, DHS says officers would fully review the facts and evidence in every case. Be ready to show the original evidence again, plus anything new.

Why is DHS doing this?

DHS says deference shifts the burden of proof to the officer, discourages full review, and can carry forward an approval that was wrong in the first place. It points to USCIS site-visit data: for H-1B extensions, the combined rate of noncompliance or fraud found at visited sites was 22.39% in fiscal years 2022–2025, when deference applied, versus 16.77% in fiscal years 2018–2020, when it did not. For L-1A extensions the figures were 24.46% and 18.37%. DHS acknowledges that other factors may explain part of that difference.

Go to regulations.gov and search for docket USCIS-2026-0529. Comments must be in English or include an English translation, and must be submitted by November 13, 2026. Everything you submit is posted publicly, including any personal information, so leave out details you do not want published.

USCIS Proposes Ending Deference to Prior Approvals on Extensions (2026)

Executive summary

On October 14, 2026, DHS published a proposed rule to remove 8 CFR 214.1(c)(5). That regulation tells USCIS officers to give deference to an earlier approval when they decide a Form I-129 filing that involves the same parties and the same underlying facts. In practice, that is most often an employer extending the same worker in the same classification.

Today, USCIS gives deference unless there was a material error in the earlier approval, a material change in circumstances or eligibility requirements, or new material information that hurts eligibility. Under the proposal, officers would no longer start from the earlier approval. DHS says they could still consider it where relevant.

The change would apply to every request filed on Form I-129. DHS lists the extension classifications that use the form: E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, the P classifications, Q-1, R-1 and TN.

DHS gives three reasons: the law puts the burden of proof on the petitioner, deference limited officers’ fact-finding, and it may let past errors or fraud carry forward into new approvals. DHS estimates about 6,044 more Requests for Evidence (RFEs) each year. It says its data showed no matching change in denial rates.

This is a proposal. The current deference rule still applies until a final rule is published and takes effect. Comments are due by November 13, 2026, and are accepted only through regulations.gov, docket USCIS-2026-0529.

What would change, in plain English

When your employer asks USCIS to extend your H-1B, L-1 or O-1, USCIS has already approved you once. Today the regulation says USCIS should generally respect that earlier decision if nothing important has changed. If an officer decides not to, USCIS guidance says the officer must explain why and give the employer a chance to respond.

The proposal removes that regulation. Each extension would be judged on the evidence filed with it. The employer would carry the full burden of showing that you still qualify, even when the job and the facts are the same as last time.

The proposal does not change who qualifies for any visa. It changes how much an officer relies on the earlier approval. DHS expects the main effect to be more RFEs. By DHS’s own figures for fiscal years 2022 to 2025, a petition with an RFE took a median of about 76 days to a first decision, compared with about 12 days without one.

This has happened before. USCIS adopted deference in a 2004 memo, rescinded it in 2017, brought it back in 2021, and wrote it into the regulations in December 2024. This proposal would remove it again.

Nothing changes yet. A proposed rule is a draft. DHS must read the comments and publish a final rule before the current regulation goes away.

What DHS proposes

Remove and reserve 8 CFR 214.1(c)(5), the regulation requiring USCIS to defer to a prior approval involving the same parties and the same underlying facts.
Apply the change to all benefit requests filed on Form I-129, Petition for a Nonimmigrant Worker.
Officers would no longer begin from a position of deference to the prior approval, but would not be prohibited from considering it where relevant.
If the rule becomes final, USCIS would update its Policy Manual guidance on deference (Volume 2, Part A, Chapter 4).
DHS estimates about 6,044 additional RFEs a year and about $133,987 a year in added time costs for petitioners. It found no corresponding change in denial rates.
DHS considered rewriting the rule to say USCIS “may” give deference in its discretion, and rejected that option as likely to create confusion.