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Perplexity ChatGPT Claude Gemini

DHS Moves to End “Deference” on Work Visa Extensions: How Could It Affect H-1B Indian?

Perplexity ChatGPT Claude Gemini
DHS Moves to End “Deference” on Work Visa Extensions: How Could It Affect H-1B Indian?

On October 14, 2026, the Department of Homeland Security (DHS) published a proposal that could make every work visa extension feel like a first-time application. USCIS proposes to remove 8 CFR 214.1(c)(5), a rule that generally tells officers to defer to a prior approval involving the same facts when reviewing an extension. Comments are due November 13, 2026, under Docket No. USCIS-2026-0529. Nothing changes yet, because deference stays in place unless DHS issues a final rule. As always, our EB-1A experts have presented a detailed breakdown of the new proposed policy in clear language.

What does “deference” mean in legal immigration?

Today, if the employer, the worker and the facts are unchanged, an officer starts from the earlier approval. Officers may depart only for a material error, a material change, or new material information that hurts eligibility. The policy covers Form I-129 filings, including H-1B, H-2A, H-2B, L-1, O-1, P, R-1, TN and E workers.

The scale is quite large. An average of 208,429 petitions a year, about 30 percent of all Form I-129 filings, were eligible for deference in fiscal years 2022 to 2025. H-1B petitions account for more than 75 percent of Form I-129 filings.

The policy has swung back and forth. USCIS adopted it in a 2004 memo, rescinded it in 2017, reinstated it in April 2021 and codified it in December 2024. Fragomen calls the new proposal the Trump Administration’s third attempt to eliminate deference.

DHS’s case regarding the elimination of deference

DHS’s argument is about who carries the burden. It says federal law puts the burden of proving eligibility on the petitioner, yet deference effectively makes the officer justify departing from a prior approval. It also worries that officers prioritize consistency and efficiency over fully exploring the evidence. More training will not fix that, DHS says: “Training, however, is not the issue or solution.”

The department also offers data. For H-1B extensions, fraud or non-compliance was found at 22.39 percent of sites visited in fiscal years 2022 to 2025. That compares with 16.77 percent in fiscal years 2018 to 2020, when deference did not apply. The L-1A figures were 24.46 and 18.37 percent. When deference ended in 2017, requests for evidence (RFEs) rose 2.9 percentage points more than for a comparison group.

DHS concedes other factors may be at work. It also reports that its own analysis found no matching change in denial rates. It considered letting officers apply deference at their discretion but rejected that option as confusing. It treats employer expectations lightly, arguing that reliance interests are limited because deference never guarantees approval.

The $134,000 figure and its relation to new policy

Some coverage has highlighted a $134,000 price tag. It is DHS’s estimate of the annual cost to all petitioners combined, based on about 6,044 additional RFEs at roughly $22 each. Over ten years, undiscounted, that comes to $1,339,870. It is not a per-employer or per-worker charge.

It also counts only paperwork time. Petitions that receive an RFE take an average of 64 more days to decide, 76 days versus 12. DHS acknowledges that this delay complicates planning for employers and leaves workers anxious about their status. It also says it could not quantify extra staff and attorney time.

Extensions are already getting costlier. On September 9, 2026, a $4,000 H-1B fee and a $4,500 L-1 fee began applying to extensions at certain large employers.

The critics of the policy

Stuart Anderson of the National Foundation for American Policy told Newsweek the change means USCIS will “adjudicate and challenge again facts it already determined to be true.” He recalled that during Trump’s first term, losing deference was a leading cause of costly RFEs and denials for long-tenured employees. Fragomen notes that after the 2017 rescission, the H-1B extension denial rate reached 24 percent, against roughly 3.5 percent today.

Adam Klein, a former senior DHS official, warned of less predictability, more RFEs and longer processing even where facts have not changed, and questioned whether added officer discretion would improve integrity. Immigration lawyer Elissa Taub of Siskind Susser argued that USCIS already has ample discretion to challenge fraud, and that the proposal mainly adds anxiety for international workers.

What happens next

Employers need not change anything today. Even so, Jeff Joseph, a former president of the American Immigration Lawyers Association, advises that each petition should be filed “as if it were a first-time filing.” Manifest Law suggests current job duties, wage records, company documents and proof the worker maintained status, plus extra time for possible RFEs. DHS must review comments before issuing a final rule and could change or drop the proposal.

At GCEB1, our EB-1A consultants are staying tuned to all the emerging immigration policies, updates and more in the U.S. immigration landscape. Get in touch with us to get personalized mentorship into the merit based immigration pathway. We wish you a safe and stress free immigration journey ahead.

Frequently Asked Questions

1. What is “deference”?

It is the practice of starting from a prior USCIS approval when the same parties and facts appear in an extension request (U.S. DHS 2026).

2. What would the proposed rule change?

It would delete 8 CFR 214.1(c)(5). Officers could still consider earlier approvals but would no longer have to begin from deference (Erickson Immigration Group n.d.; U.S. DHS 2026).

3. Which visas are affected?

Form I-129 extensions, including H-1B, L-1, O-1, TN, E and others (Newsweek 2026).

4. Is the rule in effect?

No. It is a proposal, and deference remains until a final rule is issued (Manifest Law 2026).

5. Does this mean extensions will be denied?

Not automatically. DHS says removing deference does not change eligibility, and its analysis found no matching change in denial rates (U.S. DHS 2026). Critics point to the high denials after 2017 (Fragomen n.d.).

6. Where does the $134,000 figure come from?

It is DHS’s estimate of $133,987 in annual costs for all petitioners combined (U.S. DHS 2026).

7. Why does DHS want this change?

It cites the burden of proof, officer fact-finding and fraud prevention (U.S. DHS 2026).

8. How can I comment?

Submit comments at regulations.gov under USCIS-2026-0529 by November 13, 2026 (U.S. DHS 2026).

9. What should employers and workers do now?

Prepare complete, evidence-backed extension filings and allow extra time for possible RFEs (Manifest Law 2026).

Sources & further readings

 

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