A proposed rule from the U.S. Department of Homeland Security (DHS) would strip away a protection that has quietly made H-1B extensions more predictable since 2021: the requirement that U.S. Citizenship and Immigration Services (USCIS) officers treat a prior approval as the starting point when nothing material has changed. If the proposal moves to a final rule, every extension petition becomes a fresh adjudication from scratch, with higher odds of a request for evidence and roughly two additional months of processing uncertainty on top.

The rule, titled "Removing Deference to Prior USCIS Determinations of Eligibility," was published in the Federal Register on 14 October 2026. The public comment window closes on 13 November 2026, which leaves a narrow runway for workers and employers to put their concerns on the record. Nothing changes yet: the 2024 regulation codifying deference stays in force until DHS finalizes a replacement.

What DHS is proposing, and what stays the same for now

The current rule at 8 CFR 214.1(c)(5) requires an officer reviewing an extension to defer to a prior approval unless there has been a material change in circumstances, a significant error in the earlier decision, or newly discovered adverse information. DHS argues that this framework inverts the burden of proof. As the department put it in its own regulatory text, the existing regulation and policy effectively shift the burden from the petitioner to the USCIS officer to justify departing from a prior approval.

The proposal covers every Form I-129 petition, which means it reaches H-1B, L-1, O-1, TN, E and P visa categories. DHS is careful to say it is not banning officers from looking at prior approvals: the proposal would not prohibit USCIS officers from considering a prior approval where relevant, but rather would remove the requirement that officers begin from a position of deference to the prior approval.

The deference policy has cycled with administrations. It was first introduced in 2004, withdrawn in 2017, reinstated in 2021, and written into regulation in 2024 under the Biden administration. Its status has become a planning variable that HR and legal teams cannot ignore.

Who carries the most risk

The numbers make clear that this proposal lands unevenly. USCIS approved roughly 399,000 H-1B petitions in fiscal year 2024, and Indian-born beneficiaries accounted for 71% of them. The concentration is steeper in the category the rule directly targets: of approximately 258,000 continuing-employment approvals, around 203,000, or 79%, involved Indian-born workers.

DHS estimates that H-1B petitions make up more than 75% of all Form I-129 filings, and it projects that roughly 208,000 petitions a year could be affected. That workforce is concentrated in technology and healthcare, two sectors where a delayed visa extension can stall a product launch or leave a clinical team short of a credentialed specialist for months.

Workers on TN status (typically Canadian and Mexican nationals working under the United States-Mexico-Canada Agreement framework) and L-1 intracompany transferees would also face fresh scrutiny on each renewal, though the numerical weight of the proposal falls squarely on the H-1B population.

The practical cost: more RFEs and about two extra months

DHS projects the rate of requests for evidence (RFEs) will rise by about three percentage points under the new approach. That translates to roughly 6,044 additional RFEs per year by the department's own math. An RFE is not a quick detour: across the previous four fiscal years, petitions that received one took an average of 64 additional days to process.

Employers may be required to supply fresh evidence of job duties, academic qualifications and work arrangements, even when none of those facts has changed since the last approval. DHS pegged the additional direct financial burden on petitioners at about $134,000 annually. That figure covers the agency's cost accounting; it does not capture what a 64-day delay means for a software release, a hospital staffing plan, or a family that has timed a home purchase around an expected approval date.

DHS frames the change partly through enforcement data. Site visits conducted from FY2022 through FY2025, while deference was in effect, found combined noncompliance and fraud at about 22% of H-1B extension sites inspected, compared with roughly 17% in FY2018 through FY2020, the period without deference. Critics of the proposal read the same data differently. Ashish P., an H-1B holder from Hyderabad quoted by the Deccan Chronicle, argued that DHS is openly accepting that the rule makes the system slower and more expensive for everyone, that removing the rule can increase USCIS operational costs and contribute to backlogs, and that the agency is intentionally trying to slow down processing of extension applications.

DHS itself acknowledges the human dimension. The department noted that employers and workers may have made career and personal plans in the United States based on the assumption that they would be able to continue their employment and legal presence in the country. That acknowledgment is not a concession that the rule is wrong, in DHS's framing, but it does confirm the department understands the disruption the change could cause.

For workers on H-1B and other I-129 visas

If your extension is due in the next year or two, the working assumption needs to shift: a clean approval history is still a useful foundation, but it may no longer be the officer's formal starting point. Building in time and documentation for a full re-adjudication is now the lower-risk posture.

• Ask your employer when your extension will be filed. With a possible 64-day RFE delay layered on top of normal USCIS processing, a last-minute filing leaves almost no margin for a household that has made concrete plans around a timely approval.
• Keep your own employment file current. Your current job description, degree certificates, and documentation of where and how you work are exactly the categories DHS says may need fresh evidence in every re-adjudication.
• Check that your actual role matches what was last filed. If your duties, work location, or remote or hybrid arrangement have shifted, flag that to HR or your immigration attorney before the petition is submitted, not after an RFE arrives.
• Stress-test major financial commitments. If a home purchase, a long lease, or extended international travel depends on a timely extension, talk through the timing with an immigration attorney before committing.
• Consider filing a public comment. A concrete, specific account of how an extension delay would affect your work and your family is precisely the kind of evidence the rulemaking record is missing from individual workers. The comment portal is open to anyone.

For HR teams and visa-sponsoring employers

For global mobility and HR teams at companies sponsoring H-1B workers, the proposal turns routine renewals back into full adjudications. The Society for Human Resource Management (SHRM), which represents roughly 340,000 HR professionals across the country, has consistently flagged high-skilled immigration processing times as a workforce planning risk. Teams that handle this environment well tend to treat every extension as a first-time petition rather than a paperwork formality.

• Move filing calendars forward by at least two months. Build the extra time into project delivery schedules and relocation plans for roles where a processing delay would create operational gaps.
• Rebuild the evidence package for each renewal. Document current job duties in detail, link them explicitly to the qualifications on file, and describe work arrangements precisely, including hybrid schedules and client-site work.
• Budget for re-adjudication costs. Allow for legal time on RFE responses and internal staff hours to gather documentation. DHS's $134,000 aggregate annual estimate is a starting point for understanding system-wide cost, not a per-employer budget number.
• Talk to affected employees before they hear about this elsewhere. With 79% of continuing-employment approvals involving Indian-born workers, some teams will feel this change much more acutely than others. Uncertainty about visa status is a retention risk that tends to surface quietly and resolve expensively if it is not addressed directly.
• Decide whether to submit employer comments. An employer can describe operational impact with specifics that USCIS data cannot capture: project delays, recruiting costs, and the effect on workers who have made long-term commitments in the United States based on prior approvals.

What happens next, and what it means for your planning

Comments can be submitted through the federal Regulations.gov portal under DHS Docket No. USCIS-2026-0529 until 13 November 2026. The deference provision in the existing 2024 regulation remains binding on USCIS officers until DHS publishes and adopts a final rule. No one knows how long that process will take or whether the final rule will differ from the proposal.

What is clear enough to plan around now: if the rule becomes final, more extensions will face full re-adjudication, more will draw RFEs, and those RFEs will add an average of 64 days to resolution. Workers who are several extensions into a long career in the United States, particularly those in the Indian-born population that makes up 79% of continuing-employment approvals, carry the greatest exposure to repeated full reviews while green-card backlogs keep them dependent on H-1B status for years or even decades.

For anyone holding the visa or sponsoring it, the safest move is the same: start the extension conversation earlier than you have before, assemble documentation as though no prior approval exists, and treat the comment deadline of 13 November 2026 as an opportunity to put facts on the record that the department cannot see from its own site-visit data alone.