H-1B extensions may lose deference: comment by November 13
USCIS has proposed removing the rule that tells officers to defer to a prior approval when you extend an H-1B, L-1, O-1 or other Form I-129 status with the same employer and the same facts. The proposal was published on October 14, 2026, and public comments close on November 13, 2026.
## What the current rule says
Under 8 CFR 214.1(c)(5), when a Form I-129 involves the same parties and the same underlying facts, USCIS gives deference to its earlier eligibility decision. The exceptions are a material error, a material change, or new material information that hurts eligibility.
Takeaway: today, an unchanged H-1B extension starts from the earlier approval.
## What would change
The proposal (DHS Docket No. USCIS-2026-0529) would delete that provision. In USCIS's words, it "would not prohibit USCIS officers from considering a prior approval where relevant," but it "would remove the requirement that officers begin from a position of deference to the prior approval."
- It covers every benefit request filed on Form I-129, including H-1B, L-1, O-1, E-3 and TN extensions.
- DHS itself expects about 6,044 additional RFEs a year.
- DHS notes that petitions with an RFE took an average of 64 more calendar days to process.
Takeaway: if this becomes final, plan for each extension to be reviewed as if it were new.
## A short history
- 2004: USCIS memo directs officers to defer on extensions.
- October 2017: deference memo rescinded.
- April 2021: deference reinstated in the Policy Manual.
- December 2024: codified in the H-1B Modernization final rule.
Takeaway: this policy has flipped before, so timing your extension around it is guesswork.
## What to do this week
- Comment by November 13 at regulations.gov, docket USCIS-2026-0529. USCIS says comments sent by email or mail will not be considered. Describe how the change would affect your own extension timeline.
- Keep a clean file. Save every approval notice, LCA, job description and pay record. If deference goes away, your extension has to stand on its own evidence again.
- Ask your employer about timing. If your extension is coming up, talk with them and their counsel about filing early and allowing for RFE time.
- Look at a longer-term path. Workers who depend on repeated employer-filed extensions may want to check whether a self-petition such as EB-2 NIW or EB-1A could fit their profile.
Check your self-petition fit free, no account needed: https://www.f-1careers.com/explorer?utm_source=community&utm_medium=post&utm_campaign=h1b_deference_rule
Sources: DHS/USCIS notice of proposed rulemaking "Removing Deference to Prior USCIS Determinations of Eligibility," Federal Register public inspection document 2026-20941 (public-inspection.federalregister.gov/2026-20941.pdf); Klasko Immigration Law Partners, November 2026 update (klaskolaw.com/november-2026); Duane Morris Immigration Law Blog, October 15, 2026.
Education and strategy, not legal advice. Talk to a licensed immigration attorney about your situation.