Extending an H-1B worker whose job, salary and worksite have not changed is usually one of the simpler filings an employer makes. A proposed rule published on October 14, 2026 could make it one of the harder ones.
The Department of Homeland Security (DHS) has proposed removing the regulation that tells U.S. Citizenship and Immigration Services (USCIS) to defer to a prior approval when an employer files to extend the same worker under the same facts. The proposal covers every petition filed on Form I-129, including H-1B, L-1, O-1 and TN extensions. Comments are due November 13, 2026.
What Would Change
Today, an officer may depart from an earlier approval only for a material error, a material change, or new material information. Under the proposal, officers could still look at the earlier approval, but would review the case as new. DHS says the law puts the burden of proof on the petitioner every time.
USCIS adopted deference in 2004, dropped it in October 2017, restored it in April 2021, and wrote it into the regulations in December 2024.
What the Data Shows
DHS estimates the change would raise the rate of Requests for Evidence (RFEs) on extensions by 2.9 percentage points, about 6,044 more RFEs a year, and says its analysis found no change in denial rates. By DHS’s count, a petition that gets an RFE takes about 64 days longer to decide.
The last time deference was removed, the numbers moved much more. An analysis of USCIS data by the National Foundation for American Policy found that the denial rate for H-1B petitions for continuing employment rose from 5% in fiscal year 2017 to 12% in fiscal years 2018 and 2019, then fell to 2% in fiscal year 2021 after deference returned. The share of H-1B petitions receiving an RFE rose from 21.4% to 38%, then 40.2%. Other policies of that period also played a role, but employers should plan for more than a small change.
What Employers Should Do Now
- Map upcoming extensions. List every H-1B, L-1, O-1 and TN worker whose status ends in the next 18 months, and file as early as allowed, generally six months before expiration.
- Build each extension like a new petition. Include a current job description, organizational chart, pay records and worksite details. Do not rely on the prior approval notice.
- Check for changes. Compare current duties, location, salary and reporting lines with the last petition and Labor Condition Application, and file amendments where needed.
- Plan for delays. Build RFE time into start dates and projects, consider premium processing for critical roles, and have employees check with counsel before traveling abroad during a pending extension.
- Consider commenting by November 13. Concrete data on delays and costs carries the most weight.
What Comes Next
The rule is not in effect, and the current deference regulation still applies. DHS can still finalize, change or withdraw the proposal, and has not said how it would treat pending petitions. Meanwhile, a timely filed extension lets the worker keep working for the same employer for up to 240 days. The proposal adds to other pressure on H-1B employers, including the layoff review under Executive Order 14431 and the $100,000 H-1B fee litigation.
Klug Law Firm can review your upcoming extensions, flag changes that could draw questions, and prepare petitions that stand on their own. Call (212) 495-9245 or use our contact form.
This article is provided for informational purposes only and does not constitute legal advice.