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The change to the H-1B extension rules could affect even those with perfect work histories soon enough. DHS has advised USCIS that it should not take into account its own prior review of an extension for the benefit in approving the extension. That could be a new screening for H-1B visa holders in the U.S. What’s happening and what employers and employees can do.
Quick Facts
- Proposal published: October 14, 2026; public comments close November 13, 2026.
- Rule targeted: 8 CFR 214.1(c)(5) (DHS wants to delete and mark “Reserved”)
- Estimate: On average, approximately 208,429 petitions a year, according to DHS estimates (Reddy Neuman Brown).
- Countries impacted: H-1B, L-1, O-1, TN and E classifications.
- Additional RFEs will be anticipated: An additional 6,044 requests for evidence per year.
- Status: Not final. The existing rule remains on the books until it is replaced by a final rule.
What the Proposed Rule Changes
In most cases, USCIS will now follow the previous approval when the employer submits a renewal application for the same employee and facts and job. Officers may leave that only in case of a material error, changed circumstances or new information.
Once DHS completes its plan, officers would not have to depend on the previous decision. They might raise issues that have been addressed before with you, even if there is no difference in your role. The old approval can still be taken into account but would not be given automatic weight.
Why DHS Wants to End Deference
DHS contends that deference can place the burden of proof on USCIS rather than the petitioner, even though the law imposes the burden of proof on the employer. It also states that deference may be a disincentive for officers to seek additional evidence and may vitiate any questionable approval, with a secondary effect on subsequent filings.
What It Means for H-1B Workers
The workers are likely to feel this first, as H-1B petitions account for more than 75% of all Form I-129 petitions filed. There is a possibility of questions about the job’s speciality occupation requirements if the job is specialised and you have more RFEs, even at an established employer.
There is a comforting fact that DHS has found: denial rates were not significantly different during the periods with and without deference. More delays in visa extensions and uncertainty are the bigger risk, rather than more visa refusals.
There are two aspects to delays:
- Work authorisation: Workers who have timely filed extensions may continue working until a decision is made on the case, usually for 240 days after the expiration of the I-94. A slower processing time will bring more cases to that number.
- Travel: A longer wait is required if an extension is needed prior to submitting a new visa stamp application.
6 Practical Steps Workers Can Take Now
These are suggestions only, not legal advice:
- Create a file of renewals. Have your offer letter, job description, recent pay stubs, degree evidence and performance in one place.
- Make sure you know the time limit in advance. Check your I-94 date, and ask HR when the extension will be filed.
- Be prepared to describe your job. An RFE might ask about your responsibilities and the level of relevance.
- Answer requests for information promptly. Be sure to communicate with your employer to make sure deadlines are never missed.
- Plan to travel cautiously. Do not make a non-refundable booking if it requires a fast approval.
- Consult an immigration lawyer. The rules are subject to change prior to the final.
The Bottom Line
So far, nothing is different, but if the rule is finalised, then workers who are organising their paperwork will be better off.
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