DHS plans to end deference on H-1B and other visa extensions
- DHS published the proposed rule in the Federal Register on Oct. 14.
- It would end deference to prior approvals for Form I-129 extensions.
- DHS expects about 6,044 more requests for evidence a year.
- Public comments are due by Nov. 13, 2026.
WASHINGTON, D.C., UNITED STATES — The United States Department of Homeland Security (DHS) has proposed scrapping a rule that tells immigration officers to defer to earlier approvals when employers seek to extend H-1B and other nonimmigrant worker petitions. The agency expects the change to bring about 6,000 more requests for evidence each year.
What the proposal would change
DHS and U.S. Citizenship and Immigration Services (USCIS) published the proposed rule in the Federal Register on Oct. 14, with comments due by Nov. 13. It would remove 8 CFR 214.1(c)(5), which instructs officers to defer to a prior approval involving the same parties and facts unless there was a material error, a material change or new material information.
The change would apply to all requests filed on Form I-129, Petition for a Nonimmigrant Worker. Officers could still consider a prior approval where relevant, but would no longer begin from a position of deference.
Why DHS wants deference gone
DHS said deference effectively shifts the burden of proof from the employer to the officer, who must justify departing from a prior approval. It cited site-visit data showing combined non-compliance and fraud among H-1B sites visited of 22.39% from fiscal 2022 to 2025, when deference applied, against 16.77% from fiscal 2018 to 2020, when it did not.
For L-1A extension cases, the comparable figures were 24.46% and 18.37%. DHS acknowledged that factors other than deference may have contributed.
The policy has changed course before. USCIS adopted deference in 2004, rescinded it in 2017, reinstated it in 2021 and codified it in a December 2024 rule.
Costs for employers
DHS estimates the rule would add about 6,044 requests for evidence (RFEs) a year, applying a 2.9-percentage-point rise in the RFE rate to an affected population of 208,429 petitions. It puts the added cost to employers at about $133,987 a year, or roughly $22 per RFE, across 22,748 employers.
Petitions that drew an RFE took 64 more calendar days on average to process from fiscal 2022 to 2025. DHS said longer adjudication may affect employer planning for staffing, project timelines and work assignments.
For companies that rely on visa workers for client projects, extensions become less routine, with more evidence needed to re-establish eligibility at each renewal. Employers can build extra lead time into extension filings, and those weighing alternatives can look at offshore outsourcing or a global capability center (GCC), comparing providers on the top BPO companies worldwide list.
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