DHS Proposes Ending Work Visa Extension Deference: What You Need to Know

DHS Proposes Ending Deference for Certain Work Visa Extensions

The Department of Homeland Security (DHS) has put forward a proposal that could change how certain work visa extensions are handled. Currently, U.S. Citizenship and Immigration Services (USCIS) officers usually give weight to previous eligibility decisions when an employer asks for an extension for the same worker and under the same conditions. This practice is known as deference. However, the DHS is considering removing this requirement for petitions filed on Form I-129, Petition for a Nonimmigrant Worker. This change could mean that USCIS officers will re-evaluate extensions without being bound by earlier approvals.

The proposal, published on October 14, 2026, is open for public comment until November 13, 2026. Employers and temporary workers should be aware that the current rules remain in effect until a final decision is made and a new rule is published. The DHS believes that removing deference might allow officers to conduct more thorough reviews and better identify potential fraud.

How Deference Currently Works for Extensions

Under the existing rules, USCIS officers generally defer to prior eligibility decisions for work visa extensions. This means they assume the initial approval was correct and will continue to be valid if the worker and the job situation have not changed. There are specific situations where an officer can set aside the previous decision. These include cases where the earlier approval contained a significant mistake, the circumstances have changed in a major way, or new negative information has come to light that affects the worker’s eligibility.

The DHS’s proposal aims to remove the specific regulation, 8 CFR 214.1(c)(5), that outlines this practice of deference. If the proposal is finalized, officers would have more freedom to assess extension requests from the ground up. While they could still consider previous approvals, they would not be required to follow them.

Which Visa Classifications Are Affected?

The proposed change applies to all benefit requests submitted using Form I-129. This form is used by employers to petition for foreign workers to come to the U.S. or to extend their stay. The DHS notes that H-1B petitions make up more than 75% of all filings on Form I-129. Therefore, this proposal will significantly impact many H-1B workers and their employers.

Other visa classifications that fall under this proposal include:

• H-1B: For workers in specialty occupations.
• L-1: For intracompany transferees.
• O-1: For individuals with extraordinary ability.
• TN: For Canadian and Mexican professionals under the USMCA.
• E classifications: For treaty traders and investors.

Potential Impact on Evidence Requests and Work Authorization

The DHS estimates that this change could lead to approximately 6,044 more requests for evidence (RFEs) each year. This means USCIS officers might ask for more documentation or take a closer look at the eligibility requirements during the extension review process. The department suggests that the current deference policy might have limited officers’ ability to fully investigate cases and ensure employers are meeting their obligations. By removing deference, the DHS hopes to strengthen the agency’s ability to detect and prevent fraud.

It is important to note that an increase in RFEs does not automatically mean that more extension requests will be denied. The DHS’s analysis did not find a significant difference in denial rates between periods with and without the deference policy. For many workers, a timely filed extension request allows them to continue working for up to 240 days after their current authorized stay (indicated by their I-94 form) expires, while the extension is being processed. This proposed change does not alter that provision for continued work authorization. However, longer review times due to more thorough scrutiny could bring some cases closer to that 240-day limit.

How to Submit Comments

Interested parties, including employers, workers, and immigration advocates, can submit comments on the proposed rule through the Regulations.gov website. The deadline for submitting comments is November 13, 2026. When submitting comments, individuals should reference DHS Docket No. USCIS-2026-0529. The proposed rule was officially published in the Federal Register on October 14, 2026. Until a final rule is issued and takes effect, the current regulations regarding deference will continue to apply to qualifying extensions.

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